Opinion issued December 20, 2012.




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-11-00681-CR
                            ———————————
                         DASMIN PIERRE, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee



                   On Appeal from the 183rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1311399



                          MEMORANDUM OPINION

      A jury found Dasmin Pierre guilty of murder and assessed punishment of

twenty-three years’ imprisonment. On appeal, Pierre contends that: (1) the trial

court’s erred in failing to instruct the jury that it must reach a unanimous verdict
because it instructed the jury disjunctively about the two means of committing

murder; and (2) the trial court abused its discretion by admitting Officer R. Abel’s

testimony about Pierre’s attempt upon apprehension to use a fake name in order to

conceal his fugitive status.   We conclude that the trial court did not err in

submitting the charge as worded and that Pierre waived his evidentiary complaint.

We therefore affirm.

                                   Background

      John Matthews, the decedent, known as a supplier of illicit drugs, had agreed

to sell marijuana to two women.        When the women arrived at Matthews’s

apartment, Matthews came out the front door, hurriedly approached their car, and

asked them to drive him to the corner store. They agreed. On the way back to

Matthews’s apartment, one of the women noticed Pierre walking toward the store.

      When the car stopped in front of the apartment, Matthews told the women

that he would get the marijuana and return. Before he could leave the back seat,

however, Pierre approached the car. Matthews rolled down the window and he

began to speak to Pierre. Pierre asked Matthews, “Do you have some tabs?”

Matthew responded, “Yeah, I’m rolling now.” This exchange was followed almost

immediately by four gunshots, which Pierre had fired into Matthews’s head, killing

him. The next day, Pierre called one of the women and cautioned her not to say

anything.

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      Several months later, the police learned that Pierre had been arrested in

Louisiana, but they did not apprehend him until approximately two years later.

Acting on a tip received through Crime Stoppers, they located Pierre in a Wal-Mart

near New Orleans. Officer R. Abel detained him and asked Pierre for his name.

Pierre responded “Ben Young.” After running a fingerprint check, the officers

identified the detainee as Pierre, confirmed that he was a wanted suspect, and

returned him to Texas for trial.

      The indictment charged that Pierre

      Intentionally and knowingly cause[d] the death of JOHN HENRY
      MATTHEWS, a/k/a ANTONIO JONES by SHOOTING [ot] . . .

      intend[ed] to cause serious bodily injury to JOHN HENRY
      MATTHEWS, a/k/a ANTONIO JONES, . . . and did cause the death
      of the Complainant by intentionally and knowingly committing an act
      clearly dangerous to human life.

                                    Discussion

Jury charge

      Pierre contends that the trial court committed egregious harm in failing to

require the jury to render a unanimous verdict. We review jury charge error by

considering whether (1) error exists in the charge and (2) if so, whether sufficient

harm resulted from the error to require reversal. Ngo v. State, 175 S.W.3d 738,

744 (Tex. Crim. App. 2005).




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      Jury unanimity is required to obtain a criminal conviction. TEX. CONST. art.

V, § 13; TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West Supp. 2012); Ngo, 175

S.W.3d at 745. Each and every juror must agree that the defendant committed the

same, single, specific criminal act. Ngo, 175 S.W.3d at 745. Non-unanimity may

result “when the jury charge fails to properly instruct the jury, based on the

indicted offense(s) and specific evidence in the case, that its verdict must be

unanimous.” Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011).

      The charge in this case allowed the jury to find Pierre guilty of murder if it

found (1) that Pierre either intentionally or knowingly caused death, or (2) that he

intended to cause substantial risk of life or serious bodily injury, in any of its

forms, and committed an act clearly dangerous to human life. Pierre specifically

complains that this charge violated his right to a unanimous verdict because it

allowed the jury to convict him of murder without reaching a consensus

concerning whether the State had proven beyond a reasonable doubt either one of

the two paragraphs alleged in the indictment.

      To meet the jury unanimity requirement, the jury must agree that the

defendant committed one specific crime. Landrian v. State, 268 S.W.3d 532, 535

(Tex. Crim. App. 2008). The jury need not, however, find that the defendant

committed that crime in one specific way or even with one specific act. Id. The

unanimity requirement is not violated when the jury is instructed on alternative

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theories, or manner and means, of committing the same offense. Martinez v. State,

129 S.W.3d 101, 103 (Tex. Crim. App. 2004).              When alternate theories of

committing the same offense are submitted to the jury in the disjunctive, and the

jury is required by the charge to find each element of the offense beyond a

reasonable doubt, it is appropriate for the jury to return a general verdict if the

evidence is sufficient to support a finding under any of the theories submitted. See

Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).

      In reviewing a disjunctive jury charge, we first determine whether the

separate application paragraphs contain different criminal acts or whether they

merely instruct as to different means of committing a single offense. If the

disjunctive paragraphs contain different criminal acts, then the jury must be

instructed that it cannot return a guilty verdict unless it agrees unanimously that the

defendant committed one of the acts. Ngo v. State, 175 S.W.3d at 744. If the

disjunctive paragraphs merely inform of different means of committing a single

offense, then the jury does not have to unanimously agree on which alternative

means the defendant used to commit the offense. Leza v. State, 351 S.W.3d 711,

714 (Tex. Crim. App. 2011); see Young v. State, 341 S.W.3d 417, 422 (Tex. Crim.

App. 2011).




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      In deciding whether the paragraphs allege the commission of separate

criminal acts or separate means of committing one act, “[a] handy, though not

definitive, rule of thumb is to look to the statutory verb defining the criminal act.”

Ngo, 175 S.W.3d at 745 n.24. Under section 19.02 of the Texas Penal Code, a

person commits the offense of murder if he:

      (1) intentionally or knowingly causes the death of an individual; [or]

      (2) intends to cause serious bodily injury and commits an act clearly
      dangerous to human life that causes the death of an individual . . . .
TEX. PENAL CODE ANN. § 19.02(b)(1)-(2) (West 2003). A plain reading of this

statute reveals that the subsections (1) and (2) differ in their descriptions of the

mental state required for culpability in causing death or serious bodily injury.

Compare TEX. PENAL CODE ANN. § 19.02(b)(1) (requiring mental state of

intentionally or knowingly) with id. § 19.02(b)(2) (requiring intentional conduct).

The Texas Court of Criminal Appeals has held that these provisions set forth

alternative manner or means of committing the offense of murder. Aguirre v.

State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1987); Huffman v. State, 267 S.W.3d

902, 905 (Tex. Crim. App. 2008); see Yost v. State, 222 S.W.3d 865, 876 (Tex.

Crim. App. 2007); Garcia v. State, 246 S.W.3d 121, 141 (Tex. App.—San Antonio

2007, pet ref’d). Thus, whether the jury determined that Pierre intentionally or

knowingly caused Matthews’s death, or that Pierre caused his death by committing

an act clearly dangerous to human life with the intent to cause serious bodily

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injury, the charge asked the jury to consider only one single crime of murder. The

charge submitted in this case did not pose any danger that Pierre might be found

guilty of murder on a less than unanimous verdict. We hold that the trial court did

not violate Pierre’s right to a unanimous verdict by submitting the charge as

worded.

Admission of evidence

      Pierre also contends that the trial court erred in admitting Officer Abel’s

testimony concerning Pierre’s use of an alias to Abel and his fugitive status,

complaining that the evidence was not relevant, or, alternatively, had an unfairly

prejudicial effect that outweighed any probative value it may have had. See TEX.

R. EVID. 401, 403. To preserve an objection for appellate review, that objection

must be timely and specific enough to make the trial court aware of the complaint.

TEX. R. APP. 33.1(a)(1)(A). The record shows that Pierre did not timely object to

Officer Abel’s testimony on either on the grounds raised on appeal or any other

basis. As a result, we hold that Pierre waived this complaint for appeal.

                                    Conclusion

      We hold that the trial court’s charge to the jury did not violate Pierre’s right

to a unanimous verdict. We further hold that Pierre waived any objection to




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Officer Abel’s testimony concerning Pierre’s use of an alias and his fugitive status.

We therefore affirm the judgment of the trial court.



                                               Jane Bland
                                               Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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