                      «? 26 -/S
                     NO. 24.202-C
                                               COURT OF CWUFP3IS
ORIGINAL
                                                   FEB 27 2015

                                               Abe! Asosfa, Clorfc
                        IN THE
             COURT OF CRIMINAL APPEALS
                       OF TEXAS


                                                      F!

             ROBERT EMMANUEL DIGMAN,
                                              COURT OF CRIMINAL APPEALS
                                                    FEB 27 2::]
                  Appellant Petitioner

                          VS.
                                                  Abel Acosta, Clerk

                 THE STATE OF TEXAS,
                 Appellee/Respondent'

    APPELLANT'S PETITION FOR DISCRETIONARY REVIEW


              In Appeal No. 07-14-00428-CR
                       From the
                    Court of Appeals
                For the Seventh Judicial
                    District of Texas




                                                     Robert Digman
                                                    1536 I H-10 East
                                             Fort Stockton TX 79735
                                 TABLE OF CONTENTS


INDEX OF AUTHORITIES


STATEMENT REGARDING ORAL ARGUMENT—                            2


STATEMENT OF THE CASE                                         3

STATEMENT OF PROCEDURAL HISTORY                               3

GROUNDS FOR REVIEW-L                                          4

     GROUND FOR REVIEW NO. ONE


     The Court of Appeals erred in holding the evidence was sufficient

     GROUND FOR REVIEW NO. TWO


     Judicial misconduct, misuse of judicial powers

     GROUND FOR REVIEW NO. THREE

     The Prosecuting Attorneys instructions at the opening statement of my trial
     affected my entire trial.

ARGUMENT NUMBER ONE                                            5

ARGUMENT NUMBER TWO                                               6

ARGUMENTNUM BERTH RE E                                            7

PRAYER FOR RELIEF                                                 8

CERTIFICATE OF SERVICE                                                '

APPENDIX (OPINION)
                                         ii
                              INDEX OF AUTHORITIES




Andrean V Sec-US Army, 840 F-Supp. 1414 (D.kan 1993)

Brady V Maryland 373. VS 83 (1963)

Casey V State 215 SW 3d 870

Casio V State 318 SW 3d


DigmanV State attached

Exporte Clark 597 SW 2d 760
appeal (1979)

Fitzgerald VEstelle 505 f 2d 1334,1336 (5 year 1975)

Henderson V Kibbe, 431 us 145, 97 S, LT 1730 (1977)

Hernanadez V State 952 SW 2d 59 (review granted)

Holmes V Morales 924 SW 2d 920

lnReD.LM.982SW2dl46


Kelly V State 676 SW 2d 104

Wright VSmith 569 F2d 188 (2nd cir 1978)
                                   NO. 24 202-C


                                      IN THE
                         COURT OF CRIMINAL APPEALS
                                    OF TEXAS




                            Robert Emmanuel Digman
                              Appellant/ Petitioner

                                        VS.


                               THE STATE OF TEXAS
                              Appellee/Respondent



             APPELLANT'S PETITION FOR DISCRESTIONARY REVIEW



TO THE COURT OF CRIMUNAL APPEALS OF TEXAS:

      Appellant/Petitioner respectfully submits this petition for Discretionary
Review and moves that this Honorable Court grant review for this cause and
offers the following in support thereof:



                   STATEMENT REGARDING ORAL ARGUMENT

      The Appellant Petitioner requests oral argument in this case because such
Argument may assist the Court in applying the facts to the issues raised. It is
Suggested that oral argument may help simplify the facts and clarify the issues.
                            STATEMENT OF THE CASE




      I am accused for making my step daughter slide down a water slide for my
own sexual gratification and to see her genitals or anus.




                      STATEMENT OF PROCEDURAL HISTORY




      In Cause No. 24 202-C the Appellant/Petitioner was convicted of such

offense of Indecency by exposure of a child. The Appellant/Petitioner was

convicted of such offense on April 16, 2013 and appealed the conviction on
December 23, 2014 , the 7th Court of Appeals affirmed the conviction. Amotion
 for rehearing was filed. On January 28, 2015. Motion was overruled on Feburary
 2015. This petition for discretionary Review was timely sent to the Criminal
 Court of Appeals.
                              GROUNDS FOR REVIEW


                                          I


The seventh District Court of Appeals Erred in holding that the evidence was

sufficient in court I of cause NO. 24 202-C to award a new trial.



                                          II


Misuse of judicial power, Judicial misconduct of the Trial Judge, Prosecuting
Attorney and Defense Attorney. My trial ended in constitutional error, a full
Acquittal should have been entered after the jury returned.


                                          Ill


The instructions by the District Attorney in Voir diV^    statement was incorrect
as a matter of law.




                                                                                    *4i




                                                                                     *H
                            ARGUMENT NUMBER ONE


There is no evidence to support count one. Sq Townsend failed to ask where and

how the slide was set up and where I was. The district attorney asked her if I let

her slide. No one ever asked if I tried to look at her. The district attorney accused

me of exposure but prosecuted me for letting her slide down the slide. The
district attorney mislead the jury from her opening statement to her closing

statement.

There is no evidence to support this charge the district attorney used WMiS'.te'i
A lot of hearsay but no facts to back it up. Iwas convicted on the nature of the
case not facts. The Texas law reads that a female's genitals or anus is not
exposed
until she spreads her legs, squats or bends over. Casey VState- misleading the
jury.

Cosio V State all 4 counts reversed because of egregiously harmed because
the district attorneys instructions on unanimity.
Digman VState was proven egregious harm occurred in this cause # 24 202-C and
I did not receive a fair trial, evidence was with held, which was, a statement
saying Vickie was coaching Whitney as to what to say on the stand, Whitney said
it sounds cool to slide. The state failed to prove its case Brady V Maryland.
                            ARGUMENT NUMBER TWO




Judicial power embraces power to hear facts to decide issues of facts made by

pleadings to decide questions of law involved. To render and enter judgment of
facts in accordance with law as determined by the court and to execute judgment

of sentence. The constitution assures an accused the right to effective assistance

of counsel and my 14 amendment of due process in Fitzgerald V Estelle the fifth
circuit noted that breach of legal duty. The court concluded that "state action"
could non-the less be found where it is demonstrated.

My attorney and the judge is supposed to know and uphold the laws to assure I
receive a fair and just trial by an impartial jury of my sixth amendment jury panel
must remain impartial.




Irving VDawd, the district attorney mislead the jury, the judge and/or my
attorney is supposed to fix the mistake. When the jury returned the judge should
have set aside the entire cause # 24 202-C and entered a judgment of full
acquittal. He did not, nor did he give the jury proper instructions. The district
attorney, my attorney and the trial judge failed in their duty to protect the 14*
amendment of due process and to accord justice to the accused in the
incompetency of the trial judge, district attorney and my attorney was obvious
that a reasonable state official should have been aware of it and could have taken
corrective actions BUT did not. Resulting in my trial ending with constitutional
error and egregious harm as pointed out in Digman VState, the district attorney
Amy Rhodes has a friend in the RR 3,1, 26 jury panel Juror # 3 James Gibbs, she
pointed it out in the jury selection footnote. Did the 251st still have jurisdiction
over me after my 14th amendment was violated?


                            ARGUMENT NUMBER THREE




See West Law Texas jurisprudence, third edition, judgments sec 335 void

judgments. Invalidity can be pointed out by anyone at anytime in any court.
Corpus Jurissecundum judgment-754 void judgment footnote # 5 Anderan VSec-
US Army, 840 Fsupp 1414 (D.kan 1993). Judgment is void when due process is

violated.




Henderson V Kibbe

A petitioner to be entitles to relief on erroneous jury instructions must
demonstrate that the instructors infected the entire trial resulting in conviction

and violation of due process.

Wright V Smith Exporte Clarke

The instructions that was given to the jury in opening statement and was not
corrected. I believe it infected my entire trial with breach of legal duty and
egregious harm caused before the trial ever began. The court of appeals said it
only infected half my trial. An jury member could have thought, "all Ihave to do
is believe so I don't have to listen to the whole trial."
                                       PRAYER FOR RELIEF




 In cause #24 202-C my trial ended in constitutional error, I respectfully ask the
 court to put the cause back into one appeal number. Icannot understand how
 only half a trial was infected for the reasons stated above, It is respectfully
 submitted that the court of criminal appeals should grant this petition for

 discretionary review.




  Respectfully submitted




  Robert Digman
  1536 I H-10 East
  Fort Stockton TX 79735




Xde.tio.fe_(dC ctz+c-fy / v/^/cify • or 3fntc) OaJic penalty o$ pxnor-J Hmr -tkt. tercci_ii^«




                           ?.vhj>r-r emma^Ucl h\ctmay\ s •&•+,+icmr     Pro ->e^




                                                   8
                            CERTIFICATE OF SERVICE




The undersigned Appellant/Petitioner herby certifies that a true and correct copy

of the foregoing Petition for Discretionary Review has been mailed; US mail,

postage prepaid, to the Office ofthe Criminal District Attorney for Randall County

at 2309 Russell Long Blvd Suite 120 Canyon Texas 79015, and to the State

Prosecuting Attorney, P.O. Box 12405, Austin Texas 78711, on this the

 *XH day of Feircary, 2015


APPELLANT/PETITIONER
                                  Court of Appeals
                    ^>ebentl) Btetrict of Cexatf at gmartllo

                          Nos. 07-13-00114-CR, 07-14-00428-CR



                    ROBERT EMMANUEL DIGMAN, APPELLANT

                                           V.


                         THE STATE OF TEXAS, APPELLEE


                         On Appeal from the 251st District Gourt
                                  Randall County, Texas
                Trial Gourt No. 24,202-C, Honorable Ana Estevez, Presiding


                                  December 23, 2014

                                      OPINION

                  Before QUINN, CJ., and CAMPBELL and PIRTLE,TJ.


      A jury convicted appellant Robert Emmanuel Digman of two counts of indecency

with a child by exposure1 and assessed punishment on each count at five years'
confinement in prison with a fine of $2,500. The court ordered the sentences served

consecutively. Two judgments were signed, one for each count.2 On appeal appellant


      1Tex. Penal Code Ann. §21.11 (a)(2)(A),(B) (West 2011).
      2 By sua sponte order below, we have severed the appeal into two cause
numbers, one for each of the trial court's judgments.
challenges the judgment under Count Two3 which bears appellate Cause No. 07-13-
00114-CR. Appellant does not challenge the judgment under Count One which bears
appellate Cause No. 07-14-00428-CR. In its appellee's brief, as for the judgment
challenged in Cause No. 07-13-00114-CR, the State concedes charge error caused
appellant egregious harm.     We agree, and will reverse the trial court's judgment
appealed in Cause No. 07-13-00114-CR and remand that case for a new trial. We will
affirm the trial court's judgment in Cause No. 07-14-00428-CR.

                                      Background


      A two-count indictment charged appellant with indecency with a child by

exposure. Count one alleged appellant, while acting with intent to gratify his sexual
desire, intentionally and knowingly caused W.C., a child younger than age seventeen, to

expose her genitals.


       Our concern here is Count Two which alleged:

       [0]n or aboutthe 1st day of May, A.D. 2010, in said County and State, and
       anterior to the presentment of this indictment, that ROBERT EMMANUEL
       DIGMAN
       PARAGRAPH A
       did then and there with intent to arouse and gratify the sexual desire of
       ROBERT EMMANUEL DIGMAN, intentionally and knowingly cause [CD.],
       a child younger than 17 years of age, to expose his genitals,
       PARAGRAPH B


       3 Appellant's initial court-appointed appellate counsel filed a motion to withdraw
from the representation supported by a brief under Anders v. California, 386 U.S. 738,
744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After reviewing the record we found an
arguable ground for appeal, granted the motion to withdraw, and abated and remanded
the case for appointment of new appellate counsel. Digman v. State, No. 07-13-00114-
CR, 2014 Tex. App. LEXIS 5830 (Tex. App —Amarillo May 29, 2014) (per curiam order,
not designated for publication). Following reinstatement of the appeal, new appellate
counsel filed a merits brief urging the issue now before us.
      did then and there with intent to arouse and gratify the sexual desire of
      ROBERT EMMANUEL DIGMAN, intentionally and knowingly expose his
      genitals, knowing that [CD.], a child younger than 17 years of age, was
      present[.]

      During voir dire the prosecutor told members of the jury panel:

             Indictments with multiple paragraphs. If an indictment contains
      multiple paragraphs, that means jury unanimity is not required as to the
      paragraphs.

              That means that out of twelve of the jurors, three could believe that
      a defendant exposed his genitals to gratify his sexual desire, and the rest
      of the jurors—the other nine—could believe that a defendant exposed the
      child's genitals to arouse or gratify the defendant's sexual desire. But you
      could still find him guilty of indecency with a child by exposure... .

            Six could believe the red part, six could believe the green part.
      Three could believe the red, nine could believe the green. ... As long as
      you believe it beyond a reasonable doubt.4

      In the jury charge, a single application paragraph pertaining to Count Two of the

indictment disjunctively submitted the questions whether appellant caused exposure of

C.D.'s genitals and whether appellant exposed his genitals to CD. Appellant did not

object to the submission, which read as follows:


      Now bearing in mind the foregoing instructions, if you unanimously believe
      from the evidence beyond a reasonable doubt, that the defendant,
      ROBERT EMMANUEL DIGMAN, on or about the 1st day of May, 2010, in
      the County of Randall, and State of Texas, as alleged in Count II of the
      indictment, did then and there, with intent to arouse or gratify the sexual
      desire of ROBERT EMMANUEL DIGMAN, intentionally or knowingly
      cause [CD.], a child younger than 17 years of age, to expose his genitals
      or did then and there with intent to arouse or gratify the sexual desire of
      ROBERT EMMANUEL DIGMAN, intentionally or knowingly expose his
      genitals, knowing that [CD.], a child younger than 17 years of age, was

      4 The prosecutor explained that, on an exhibit, she had highlighted one
paragraph in green, the other in red.
         present, you will find the defendant guilty of the offense of Indecency With
       A Child By Exposure, as alleged in Count II of the indictment, and so say
       by your verdict. If you do not so believe, or if you have a reasonable doubt
       thereof, you will acquit the defendant of Count II and so say by your
         verdict.


         (Bolding and underlining in original).

         The attached verdict form for Count Two asked the jury merely to find appellant

guilty, or not, "of the offense of Indecency With A Child by Exposure as alleged in Count

II of the indictment."


         In closing argument, the prosecutor told the jury:

         Now remember, six of you can decide [appellant] exposed his own
         genitals for his sexual gratification, or six of you could decide he exposed
         [C.D.'s] genitals for his gratification, as long as each one of you believes
         beyond a reasonable doubt that that happened. You all do not have to
         agree on whose genitals were exposed for [appellant's] gratification as
         long as you believe it beyond a reasonable doubt.

         The jury found appellant guilty of the offenses alleged under both counts of the

indictment and the court imposed the noted sentences.


                                            Analysis


         Through a single issue appellant argues the jury charge was flawed in that it

permitted conviction under Count Two of the indictment without requiring jury unanimity

and the error, although then unchallenged, caused him egregious harm.


         When reviewing claims of jury-charge error, we first determine whether an error

actually exists in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App.

2009).     If error exists and appellant objected to the error at trial, then we determine

whether the error caused sufficient harm to require reversal. Id.; Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985); see Ngo v. State, 175 S.W.3d 738, 743-44

(Tex. Crim. App. 2005). When, as here, the error was not brought to the attention of the

trial court, we will not reverse for jury-charge error unless the record shows egregious

harm. Barrios, 283 S.W.3d at 350.


      In making our determination, "the actual degree of harm must be assayed in light

of the entire jury charge, the state of the evidence, including the contested issues and

weight of probative evidence, the argument of counsel and any other relevant

information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at

171; see Garrett v. State, 159 S.W.3d 717, 719-21 (Tex. App.—Fort Worth 2005), affd,

220 S.W.3d 926 (Tex. Crim. App. 2007). Jury charge error causes egregious harm to

the defendant if it affects the very basis of the case, deprives the defendant of a

valuable right, or vitally affects a defensive theory. Almanza, 686 S.W.2d at 171. In

analyzing harm from a jury charge error, neither the State nor the defense has a burden

to show harm, learner v. State, 245 S.W.3d 458, 462, 464 (Tex. Crim. App. 2008).


      "Under our state constitution, jury unanimity is required in felony cases, and,

under our state statutes, unanimity is required in all criminal cases." Ngo, 175 S.W.3d

at 745.   The jurors "must agree that the defendant committed one specific crime."

Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008); see Pizzo v. State, 235

S.W.3d 711, 714 (Tex. Crim. App. 2007) (jury unanimity required on essential elements

of offense).   The jury unanimity requirement, however, does not extend to require

agreement among jurors on the specific way in which the defendant committed the

crime. Id. Recognizing that defining crimes is a legislative function, when courts decide

what elements and facts require unanimous agreement for conviction, we "implement
the legislative intent behind the penal provision." Id. In cases like that before us, the
task requires the court to examine the statute defining the offense to determine whether

by its enactment the Legislature defined separate offenses or a single offense with
different methods or means of commission. Pizzo, 235 S.W.3d at 714; see Huffman v.

State, 267 S.W.3d 902 (Tex. Crim. App. 2008) (noting similarity of analysis in jury

unanimity and double jeopardy cases); Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim.

App. 1999) (analysis of legislative intent in double jeopardy context).

       In relevant part, the indecency with a child statute reads:

              (a)         A person commits an offense if, with a child younger than
                          17 years of age, whether the child is of the same or
                          opposite sex, the person:

                (1)        engages in sexual contact with the child or causes the
                           child to engage in sexual contact; or

                (2)        with intent to arouse or gratify the sexual desire of any
                           person:


                    (A)       exposes the person's anus or any part of the
                              person's genitals, knowing the child is present; or

                    (B)      causes the child to expose the child's anus or any
                             part of the child's genitals.

Tex. Penal Code Ann. §21.11 (a) (West 2011).

       The single application paragraph and verdict form for Count Two permitted the

jury to find appellant guilty of indecency with a child if jurors determined appellant

exposed his genitals, knowing the child CD. was present, or determined appellant

caused CD. to expose his genitals. The jury was not required to reach unanimity as to

which provision of the statute, § 21.11(a)(2)(A) or § 21.11(a)(2)(B), appellant violated.

                                              6
So the question is whether those two subsections define two separate offenses or two

means of committing the same offense.


      Our Court of Criminal Appeals has addressed the same question with respect to

other subsections of the indecency with a child statute. The court recently reiterated its

holding that, by criminalizing indecency with a child by exposure in one subsection of

section 21.11(a) and indecency by contact in another subsection, the Legislature

created two separate offenses, not two means of committing indecency.           Aekins v.

State, No. PD-1712-13 2014, Tex. Crim. App. LEXIS 1718, at *18 (Tex. Crim. App. Oct.

22, 2014) (citing Loving v. State, 401 S.W.3d 642, 646-49 (Tex. Crim. App. 2013)); see

Huffman, 267 S.W.3d at 907 (sex offenses are nature of conduct crimes and the court

has "uniformly required that different types of conduct specified in the various statutes

be treated as separate offenses").


       Pizzo, 235 S.W.3d 711, involved an indecency-by-contact prosecution in which

the defendant complained he was denied the right to a unanimous jury verdict because

the indictment alleged he touched the child's breasts and genitals but the jury charge

authorized conviction on a finding he touched the child's breasts or genitals. Id. at 712.

The court of appeals held the touching of breasts and genitals, during the same

encounter, were not separate offenses but only different means of committing

indecency with a child by contact. Id. at 713. The Court of Criminal Appeals disagreed.
      Guided by its analysis of the grammatical structure5 of the statute, the court
found the focus of the statute's language was the nature of the conduct proscribed, and

concluded under section 21.11(a)(1) and (c) "if a person touches the anus, breasts, and

genitals of a child with the requisite intent during the same transaction, the person is
criminally responsible for three separate offenses." Pizzo, 235 S.W.3d at 717-18; see

Loving, 401 S.W.3d at 648-49; Huffman, 267 S.W.3d at 907 (both summarizing court's

holding in Pizzo)e

      Application of the court's analysis in Pizzo leads directly to the conclusion the two

subsections of section 21.11 involved here, subsections (a)(2)(A) and (a)(2)(B), define

two separate indecency by exposure offenses, not merely two methods of committing

the same offense.     We note first that the two subsections are separated by the

conjunction "or," indicating that each subsection describes a distinct act, and that an

offense is complete when a person commits either act with the required intent. See

Pizzo, 235 S.W.3d at 717-18 (citing and quoting Vick, 991 S.W.2d at 833, for similar

conclusion).   And, although the two subsections begin with the same subject ("the

person") and require the same intent ("intent to arouse or gratify the sexual desire of

any person"), they contain different verbs (the person "exposes" vs. the person

       5 See Stuhler v. State, 218 S.W.3d 706, 718 (Tex. Crim. App. 2007) (citing
Jefferson v. State, 189 S.W.3d 305, 315-6 (Tex. Crim: App. 2006) (Cochran, J.,
concurring)).

       6 In Loving, describing its holding in Pizzo, the court said: "After examining the
grammar of the statute, we held that indecency with a child by contact is a conduct-
oriented offense and that, 'sexual contact' as charged in that case, 'criminalizes three
separate types of conduct—touching the anus, touching the breast, and touching the
genitals with the requisite mental state.' We concluded that, because the subsection
prohibits the commission of any one of those acts, each act is a separate offense, and
the allowable unit of prosecution for indecency with a child by contact is the commission
of the prohibited touching." Loving, 401 S.W.3d at 648 (internal citations omitted).
"causes") and are completed by different direct objects (the person's anus or any part of

genitals vs. the child to expose his anus or any part of genitals).7 They thus describe

two similar but elementally different types of conduct, criminalizing exposure, under

particular circumstances and with a particular mental state,8 of the anus or genitals of
different individuals.9 As the court noted in Loving, "The gravamen of the indecency-
with-a-child statute is the nature of the prohibited conduct, regardless of whether the

accused is charged with contact or exposure."          Loving, 401 S.W.3d at 649.      The

conclusion is consistent also with the double-jeopardy analysis in Harris v. State, 359

S.W.3d 625 (Tex. Crim. App. 2011), in which the court determined the allowable unit of

prosecution for indecency with a child by exposure is "the act of exposure." Id. at 632

("the gravamen of the offense of indecency with a child by exposure is the act of

exposure").


       The charge's application paragraph improperly permitted jurors to convict

appellant of either of two separate offenses without requiring them to be unanimous as

to the offense committed. Some jurors may have believed that appellant exposed his

genitals for sexual gratification while some might have concluded he caused CD. to

expose his genitals for appellant's gratification. This was error.

       7 We think the clause "the child to expose the child's anus or any part of the
child's genitals" is best described as an infinitive clause used as a direct object.

       8 Under either subsection, the child must be under the age of 17 and the person
must act with intent to arouse or gratify the sexual desire of any person. Tex. Penal
Code Ann. § 21.11(a), (a)(2) (West 2011).

       9 Cf. Loving, 401 S.W.3d at 651 (Cochran, J., concurring) (describing, in double-
jeopardy analysis, defendant's act of causing girl to touch his penis as separate criminal
act from his act of exposing himself because, inter alia, they were acts "committed by
separate individuals").
      We turn then to the question whether the record adequately demonstrates

resulting egregious harm. Almanza, 686 S.W.2d at 171. The evidence in this case

showed appellant and CD. were in the bathtub together.                The prosecutor's

unchallenged voir dire statements and closing argument surely left no doubt in the

minds of the jurors that conviction on Count Two was possible even without their

unanimity on the offense committed by appellant's conduct.10 We conclude the charge
error deprived appellant of the valuable right to a unanimous verdict. The harm was

egregious. Id.


      Accordingly, we sustain appellant's issue.


                                  Order of Severance


      As noted, trial of the case resulted in two separate trial court judgments. We sua

sponte sever the appeal into separate cause numbers, one for each judgment. Thus,

the appeal of the judgment entered as to Count One bears appellate Cause No. 07-14-

00428-CR, while the appeal of the judgment entered as to Count Two bears appellate

Cause No. 07-13-00114-CR.


                                       Conclusion



       We reverse the judgment of the trial court appealed in Cause No. 07-13-00114-

CR (Count Two) and remand that portion of the case for a new trial. See Tex. R. App.

       10 In Jourdan v. State, 428 S.W.3d 86 (Tex. Crim. App. 2014), an aggravated
sexual assault case, the court found, on the particular facts presented, the trial court's
failure to require jury unanimity did not cause the defendant egregious harm despite
statements during voir dire and argument similar to those present here. Id. at 98-99.
Review of the record in this case convinces us that the potential for a non-unanimous
verdict on Count Two is greater than in Jourdan.


                                            10
P. 43.2(d).   We affirm the judgment of the trial court in Cause No. 07-14-00428-CR

(Count One). See Tex. R. App. P. 43.2(a).




                                                 James T. Campbell
                                                     Justice



Publish.




                                            11
                                                                                     FILE COPY




                                  No. 07-14-00428-CR



Robert Emmanuel Digman                       §     From the 251st District Court of
 Appellant                                           Randall County
                                             §
v                                                  December 23, 2014
                                             §
The State of Texas                                 Opinion by Justice Campbell
 Appellee                                    §



                                   JUDGMENT


      Pursuant to the opinion of the Court dated December 23, 2014, it is ordered,

adjudged and decreed that the judgment of the trial court be affirmed.

       Inasmuch as this is an appeal in forma pauperis, no costs beyond those that

have been paid are adjudged.

       It is further ordered that this decision be certified below for observance.


                                           oOo
