                            NUMBER 13-06-00202-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


MANUEL GONZALEZ SOTO,                                                        Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                   On appeal from the 398th District Court
                         of Hidalgo County, Texas


                            DISSENTING OPINION

                 Before Justices Yañez, Rodriguez, and Vela
                     Dissenting Opinion by Justice Vela

       The majority reverses Soto’s convictions on the bases that the charge erroneously

permitted a conviction on a less-than-unanimous verdict on the alternative paragraphs

alleged in Count 1 (aggravated sexual assault of a child) and Count 2 (indecency with a

child by contact) and that Soto “was egregiously harmed by the error” and “[a]s a result of
the non-unanimous verdict error in Counts 1 and 2, we cannot determine whether the jury

erroneously relied on conduct subsumed within offenses charged in Counts 1 and 2 in

convicting [Soto] in Count 3.” Because I would hold that Soto did not suffer egregious

harm and because the record does not show that the jury erroneously relied on conduct

subsumed within offenses charged in Counts 1 and 2 in convicting Soto in Count 3, I must

dissent from the majority’s opinion.

                                       I. Egregious Harm

      By issue five, Soto argues the trial court erred by failing to instruct the jurors they

must reach a unanimous verdict with respect to the alternative paragraphs of Count 1

(aggravated sexual assault of a child) and Count 2 (indecency with a child by contact).

When we review a charge for alleged error, we determine (1) whether charge error actually

existed, and (2) whether any resulting harm requires reversal. Castaneda v. State, 28

S.W.3d 685, 694 (Tex. App.–Corpus Christi 2000, no pet.).

1. Requirement of Unanimous Verdict

      Verdict unanimity is required in felony criminal cases. TEX . CONST . art. V, § 13; TEX .

CODE CRIM . PROC . ANN . art. 36.29(a) (Vernon Supp. 2007). A unanimous jury verdict

“ensures that the jury agrees on the factual elements underlying an offense,” requiring

“more than mere agreement on a violation of a statute.” Francis v. State, 36 S.W.3d 121,

125 (Tex. Crim. App. 2000).

      Here, the court instructed the jury disjunctively on Counts 1 and 2. The jury returned

a separate, general guilty verdict for Count 1 and a separate, general guilty verdict for

Count 2. Because each act proscribed by penal code sections 22.021 (aggravated sexual

assault of a child) and 21.11 (indecency with a child by contact) constitutes a separate

statutory offense, the court’s disjunctive submission prevented jury unanimity for Counts
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1 and 2. See Pizzo v. State, 235 S.W.3d 711, 718 (Tex. Crim. App. 2007); Vick v. State,

991 S.W.2d 830, 832-33 (Tex. Crim. App. 1999). Therefore, the trial court erred in

submitting the charge in the disjunctive form. See id.

2. Harm Analysis

        When, as in this case, an accused fails to object to the charge, an appellate court

will not reverse, unless the error was so egregious, and created such harm, that the

accused has not had a fair trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985). Under the Almanza egregious-harm standard, the record must show that a

defendant has suffered actual, rather than merely theoretical, harm from the jury-instruction

error. Id. at 174. Egregious harm consists of errors affecting the very basis of the case

or that deprive the defendant of a valuable right, vitally affect a defensive theory, or make

the case for conviction or punishment clearly and significantly more persuasive. Saunders

v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). Egregious harm is a difficult

standard to prove and must be determined on a case-by-case basis. Ellison v. State, 86

S.W.3d 226, 227 (Tex. Crim. App. 2002).                   To determine whether a defendant has

sustained egregious harm from an instruction to which he did not object, an appellate court

considers: (1) the entire charge; (2) the state of the evidence, including contested issues;

(3) arguments of counsel; and (4) any other relevant information. Hutch v. State, 922

S.W.2d 166, 171 (Tex. Crim. App. 1996).

(i) The Charge

        The court instructed the jury on the State’s burden of proof1 and the requirement of



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            The court instructed the jury: “The prosecution has the burden of proving the defendant guilty and
it m ust do so by proving each and every elem ent of the offense charged beyond a reasonable doubt, and if
it fails to do so, you m ust acquit the defendant.”
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a unanimous verdict.2

(ii) State of the Evidence and Contested Issues

        With respect to Count 1—aggravated sexual assault of a child—the evidence

showed Soto penetrated the child victim’s mouth with his sexual organ and that he caused

his sexual organ to contact the child victim’s mouth. Sotos’s acts of putting his sexual

organ into the child victim’s mouth necessarily resulted in contact between the child victim’s

mouth and Soto's sexual organ. There is no evidence of any other act or acts of contact

between the child victim’s sexual organ and Soto's finger. Thus, certainly, the jurors

unanimously found Soto guilty of both penetrating the child victim's mouth with his sexual

organ and causing her mouth to contact his sexual organ.

        With respect to Count 2—indecency with a child by contact—the child victim testified

that Soto made her rub his sexual organ. The outcry witness, Officer Saldana, testified the

child victim told him that Soto “made her rub [his sexual organ] up and down.” Lorenza

Guerrero testified the child victim told her that Soto “would have her hold his private part

. . . with her hand.” Thus, the evidence showed that Soto caused the child victim to touch

part of his genitals.

        Guerrero testified that Soto touched the child victim “[t]o the genital area. She told

me she had been touched in her genital area.” Guerrero stated that “he would be rubbing

his private part to the female’s sexual organs” “like the vaginal area, the front.” Thus, the

evidence showed that Soto touched part of the child victim’s genitals. There is no evidence




        2
         The court instructed the jury: “Your verdict m ust be unanim ous. Unanim ous m eans all 12 of you
m ust vote, and after you have reached a unanim ous verdict, the presiding juror will certify thereto by signing
the appropriate form attached to this charge.”
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to show that Soto touched the child victim’s breasts.3

        There is nothing in the record to suggest that a juror would believe Soto was guilty

of touching the child victim's genitals, but harbor a reasonable doubt concerning whether

he ever caused her to touch his genitals.

(iii) Arguments of Counsel

        During the State's closing argument4 at the guilt-innocence stage, the prosecutor

mentioned the three alternative statutory offenses submitted under Counts 1 and 2.

However, the prosecutor did not tell the jury that they need not follow the trial court’s

unanimous-verdict instruction. Moreover, the alternative statutory offenses submitted to


        3
          The child victim testified Soto had touched her chest. However, this testim ony is insufficient to show
he touched her breasts. In Nelson v. State, 505 S.W .2d 551, 552 (Tex. Crim . App. 1974), the question before
the court of crim inal appeals was whether the victim 's testim ony that “he rubbed m y chest” was sufficient to
sustain the allegation in the indictm ent that the defendant did “place his hand against the breasts” of the
victim . The court found the evidence insufficient because the definition of “chest” was patently broader than
the definition of “breast” and “includes a larger area of the body than that encom passed by the latter.” Nelson,
505 S.W .2d at 552.

        4
            Regarding Counts 1 and 2, the prosecutor stated:

                 Keep in m ind, ladies and gentlem en, that either one of these--let’s say you find that
        there was contact that his sexual organ, his penis, contacted the m outh of the victim . That’s
        enough for an aggravated sexual assault. There is three different m anner and m eans. You
        don’t have to agree--all of you don’t have to agree that one of these happened, as long as
        you all agree that either one of these happened. Okay. The Judge told you that it has to be
        unanim ous, m eaning that all 12 of you have to decide guilty or not guilty.

                 And as far as m anner and m eans, one person will say, W ell, you know what? I
        believe the evidence showed that his sexual organ contacted the m outh of som ebody else.
        W ell, you say, you know what? I think that it not only contacted but he put his penis in her
        m outh. W ell, that’s enough for an aggravated sexual assault in that regard.

        * * *

        So if you find in Count 2 he m ade her touch part of his genitals, then you will also find him
        guilty of indecency with a child, or that he touched her breasts or that she touched any part
        of his genitals, either one of these.

                If one of you says, W ell, you know what? I think the evidence shows that he touched
        her breasts, but there was no evidence that he touched part of her genitals and the evidence
        shows that all of these happened, but if any one of you have a question as to which one it
        was, as long as it was either one of these, you will find him guilty of indecency with a child.



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the jury under Counts 1 and 2 were not mutually exclusive. See Ngo v. State, 175 S.W.3d

738, 751-52 (Tex. Crim. App. 2005) (holding that defendant could not be guilty of both

stealing credit card and receiving stolen credit card from thief).

(iv) Other Relevant Information

       Soto's defensive strategy was to undermine the child victim's credibility by adducing

evidence that she and her mother were liars. In other words, Soto's defensive theory was

that the State had failed to prove beyond a reasonable doubt that he was guilty of any of

the offenses alleged against him. The jury obviously resolved the credibility issue in the

child victim's favor.

       I conclude the trial court’s disjunctive submission did not constitute error affecting

the very basis of the case or error that deprived Soto of a valuable right, vitally affected a

defensive theory, or made the case for conviction or punishment clearly and significantly

more persuasive. See Saunders, 817 S.W.2d at 692. I would hold, therefore, that the

disjunctive submission of the three distinct statutory offenses alleged in Counts 1 and 2,

without requiring unanimity concerning the distinct statutory offenses, did not result in

egregious harm to Soto. I would overrule issue five.

            II. Whether the Jury Erroneously Relied on Conduct Subsumed
        within Offenses Charged in Counts 1 and 2 in Convicting Soto in Count 3

       Soto did not object to the submission of Count 3 to the jury, and he did not raise this

issue on appeal. Count 3–indecency with a child by exposure–is a separate offense from

aggravated sexual assault of a child (Count 1) or indecency with a child by contact (Count

2). See TEX . PENAL CODE ANN . § 21.11(a)(2)(A) (Vernon 2003). The evidence showed

Soto exposed his genitals to the child victim. The trial court submitted Count 3 to the jury

in a single paragraph. Accordingly, the jury reached a unanimous guilty verdict on Count

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3. The record does not show that the jury erroneously relied on conduct subsumed within

offenses charged in Counts 1 and 2 in convicting Soto of indecency with a child by

exposure. For these reasons, I respectfully dissent.

       I would affirm the trial court’s judgments.




                                                     ROSE VELA
                                                     Justice


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

Dissenting Opinion delivered and
filed this 29th day of July, 2008.




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