                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                            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 Court
                                    Randall County, Texas
                  Trial Court No. 24,202-C, Honorable Ana Estevez, Presiding

                                   December 23, 2014

                                        OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      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


      1
          TEX. 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:

      [O]n or about the 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 [C.D.],
      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.

                                           2
      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 [C.D.], 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 C.D. 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 [C.D.], 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 [C.D.], 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.

                                           3
       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

                                                4
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), aff’d,

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. Warner 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

                                            5
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 C.D. was present, or determined appellant

caused C.D. 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.




                                            7
       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).6


       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).

                                             8
“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 C.D. 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”).


                                             9
      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 C.D. 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
