                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00061-CR


CAREY LAMAR MORRISON                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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      In two points that concern the trial court’s jury charge, appellant Carey

Lamar Morrison appeals his conviction for burglary of a habitation. We affirm.

                              Background Facts

      One summer evening in 2010, twelve-year-old Jorge Perez was in the

garage of the home of his grandfather, Jesus Perez, when appellant walked

toward Jorge, asked who was in the house, grabbed Jorge’s collar, and took


      1
       See Tex. R. App. P. 47.4.
Jorge into the house. Appellant wore a hoodie, had a bandana over his mouth,

and pressed a silver gun against Jorge’s back.2       When Jorge and appellant

entered the house, Jesus was watching television in the living room. Appellant

tapped Jesus on a shoulder and asked for money. Jesus gave a wallet that

contained approximately $900 to appellant. Appellant asked for more money, but

Jesus told him that there was no more, which made appellant angry. 3 Appellant

went with Jorge and Jesus into various parts of the house.

      Eventually, Jorge’s uncle (and Jesus’s son), Juan, who had heard a voice

that he did not recognize, came out of a restroom and saw appellant. Juan

looked at appellant’s gun and determined that it was plastic, and then Jesus,

Juan, and appellant began to tussle.4 Appellant, who lost possession of the

money and the gun, tried to leave through the garage, but Juan and Jesus

reached him, slammed him into a wall, and continued to fight against him.

During the altercation, appellant grabbed a plastic toy and hit Jesus with it twice

on Jesus’s head.    Appellant also kicked Jesus’s wife when she tried to help

Jesus and Juan. As appellant continued to scream and fight, one of Jorge’s

      2
       Jorge testified at trial that he became afraid and felt threatened when
appellant approached him. The police later determined that appellant had been
carrying a BB gun.
      3
       Jesus said that he gave appellant money so that appellant would not “beat
up [Jorge].” Jesus also testified that he was worried for Jorge’s safety because
appellant had a gun.
      4
     Fort Worth Police Department Officer Tom Gierling testified that the gun
was made of metal.


                                        2
cousins called 911, and a few minutes later, the police arrived. Officers struggled

to subdue appellant, but they eventually arrested him. The officers took pictures

of Jesus, who had scrapes on the side of his face, redness along his hairline, and

an “impression like something [had hit] him.”

      A Tarrant County grand jury indicted appellant with burglary of a habitation.

Specifically, the indictment alleged that appellant had committed burglary by,

without Jorge’s consent, intentionally or knowingly entering a habitation with the

intent to commit robbery.5 Appellant retained counsel and pled not guilty. During

the trial, appellant did not ask questions of any witness and did not call any.

After the State’s closing argument, appellant’s counsel gave the following closing

argument, in its entirety:

            Did the government prove the charge against [appellant]? If
      they did, then you have to find him guilty. If -- but if they didn’t prove
      every element of that charge against [appellant], every element, you
      have to find him not guilty. That’s the law, and that’s what you swore
      you would abide by. Okay?

              So when you go back there and think about it, go through the
      law, if . . . they proved their case, you’ll find him guilty. But if they did
      not prove even one element, then you have to find him not guilty.

             Thank you.

The jury deliberated for fifteen minutes before it found appellant guilty. After

appellant testified in the punishment phase of his trial, the jury assessed his




      5
      The indictment, therefore, charged appellant with a first-degree felony.
See Tex. Penal Code Ann. §§ 29.02(a), 30.02(a)(1), (d) (West 2011).


                                           3
punishment at five years’ confinement.       The trial court sentenced appellant

accordingly, and he brought this appeal.

                            The Robbery Instruction

      In his first point, appellant argues that the trial court erred by including an

instruction in the guilt-phase jury charge that stated, “Our law provides that a

person commits the offense of robbery if, in the course of committing theft and

with intent to obtain or maintain control of the property, he intentionally or

knowingly causes bodily injury or threatens or places another in fear of imminent

bodily injury or death.” [Emphasis added.] Appellant argues that the italicized

part of this instruction was erroneous because there was “no testimony to

support the theory that [he] inflicted ‘bodily injury’ upon anyone.”           More

specifically, appellant contends that the instruction was improper because

although the evidence showed that appellant hit Jesus with a toy, Jesus did not

testify that this caused him physical pain, illness, or impairment of his physical

condition, and the jury was therefore able to consider a definition of robbery that

did not apply to the facts of the case.6 At trial, after both parties rested, the

following exchange occurred:




      6
        See Tex. Penal Code Ann. § 1.07(a)(8) (West Supp. 2011) (defining
bodily injury as “physical pain, illness, or any impairment of physical condition”).
“Bodily injury” broadly encompasses “even relatively minor physical contacts so
long as they constitute more than mere offensive touching.” Lane v. State, 763
S.W.2d 785, 786 (Tex. Crim. App. 1989).


                                         4
              [DEFENSE COUNSEL]: . . . We don’t think there was any
      testimony . . . where the witness testified that they had, indeed, in
      fact, suffered bodily injury from being hit with anything. . . . [T]here
      was some testimony by the grown son that the older gentleman had
      been hit with that plastic toy, but . . . there was no testimony from the
      actual person who got hit as to whether that caused bodily injury or
      not. . . .

            THE COURT: . . . I’m going to construe that as an objection
      and overrule it.

      Appellate review of alleged error in a jury charge involves a two-step

process. Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994); see

also Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we

must determine whether error occurred; if so, we must then evaluate whether

sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at

731–32. A trial court must deliver to the jury “a written charge distinctly setting

forth the law applicable to the case.” Tex. Code Crim. Proc. Ann. art. 36.14

(West 2007).

      The factual contention undergirding appellant’s first point—that there was

no testimony that someone suffered bodily injury as a result of appellant’s

crime—is belied by the record.       As we have explained above, the evidence

showed that appellant hit Jesus with a plastic toy and that officers saw scrapes

on the side of Jesus’s face, redness along his hairline, and an impression like

something had hit him.       This evidence allowed for an inference that Jesus

suffered bodily injury despite the fact that Jesus did not testify directly that he had

suffered physical pain, illness, or impairment of his physical condition.



                                          5
See Wingfield v. State, 282 S.W.3d 102, 106 (Tex. App.—Fort Worth 2009, pet.

ref’d) (“Although Russell did not affirmatively testify to any pain, the State entered

into evidence a picture of Russell’s mouth showing a laceration on his lower

lip. . . .   [T]he jury could have reasonably inferred that Russell suffered pain

. . . .”); Arzaga v. State, 86 S.W.3d 767, 778 (Tex. App.—El Paso 2002, no pet.)

(holding that although no witness directly testified that the victim suffered pain as

a result of being struck in the mouth by her husband’s fist, the evidence was

sufficient to prove bodily injury because there was evidence that the victim’s

mouth swelled, bruised, and was cut); Goodin v. State, 750 S.W.2d 857, 859

(Tex. App.—Corpus Christi 1988, pet. ref’d) (“The fact of a physical intrusion on

the body in the form of a cut or scrape can itself be sufficient evidence of the

associated physical pain necessary to show ‘bodily injury.’”)

        We hold that the record precludes the factual assertion upon which

appellant conditions his first point, and we therefore conclude that the jury charge

could not be erroneous for the reason stated by appellant in that point. 7 We

overrule appellant’s first point.




        7
       The State argues that the instruction about the definition of robbery that
we have quoted above would have been proper even if there had not been
evidence of bodily injury. We decline to address this argument, and we express
no opinion on it. See Tex. R. App. P. 47.1 (requiring appellate courts to address
“every issue . . . necessary to final disposition of the appeal”); Smith v. State, 316
S.W.3d 688, 700 n.2 (Tex. App.—Fort Worth 2010, pet. ref’d).


                                          6
                                 Jury Unanimity

      In his second point, appellant contends that the guilt-phase jury charge

erroneously allowed the jurors to return a verdict that was not unanimous. The

jury charge notified the jury that its verdict must have been “by a unanimous

vote.” The charge also instructed the jury,

      [I]f you find and believe from the evidence beyond a reasonable
      doubt, that [appellant] . . . did intentionally or knowingly, without the
      effective consent of Jorge Perez, the owner thereof, enter a
      habitation with intent to commit robbery, as charged in the
      Indictment, then you will find [appellant] guilty of burglary of a
      habitation with intent to commit robbery . . . .

Appellant contends that to appropriately sustain his burglary conviction, the

charge should have required the jury to unanimously decide whether appellant

entered the habitation with the intent to commit robbery by threat or, alternatively,

entered the habitation with the intent to commit robbery causing bodily injury.

See Tex. Penal Code Ann. §§ 29.02(a), 30.02(a)(1).

      Jury unanimity is required in all criminal cases by the Texas constitution

and the code of criminal procedure. Cosio v. State, 353 S.W.3d 766, 771 (Tex.

Crim. App. 2011); Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App.

2008); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). Thus, every

juror must agree that “the defendant committed the same, single, specific

criminal act.” Ngo, 175 S.W.3d at 745; see Bundy v. State, 280 S.W.3d 425, 431

(Tex. App.—Fort Worth 2009, pet. ref’d). But this does not mean that the “jury

must unanimously find that the defendant committed that crime in one specific



                                         7
way.” Landrian, 268 S.W.3d at 535. In other words, “[t]he unanimity requirement

is not violated by instructing the jury on alternative theories of committing the

same offense, in contrast to instructing the jury on two separate offenses

involving separate incidents.”   Martinez v. State, 129 S.W.3d 101, 103 (Tex.

Crim. App. 2004). The court of criminal appeals has identified three situations in

which non-unanimity may occur:

              First, non-unanimity may occur when the State presents
      evidence demonstrating the repetition of the same criminal conduct,
      but the actual results of the conduct differed. For example, if the
      State charges the defendant with the theft of one item and the
      evidence shows that the defendant had in fact stolen two of the
      same items, the jury’s verdict may not be unanimous as to which of
      the two items the defendant stole. To ensure a unanimous verdict in
      this situation, the jury charge would have to make clear that the jury
      must be unanimous about which of the two items was the subject of
      the single theft.

             Second, non-unanimity may occur when the State charges
      one offense and presents evidence that the defendant committed
      the charged offense on multiple but separate occasions. Each of the
      multiple incidents individually establishes a different offense or unit
      of prosecution. The judge’s charge, to ensure unanimity, would
      need to instruct the jury that its verdict must be unanimous as to a
      single offense or unit of prosecution among those presented.

            And third and finally, non-unanimity may occur when the State
      charges one offense and presents evidence of an offense,
      committed at a different time, that violated a different provision of the
      same criminal statute.[8] To ensure unanimity in this situation, the


      8
        This occurred in Ngo when the defendant had been charged with credit
card abuse, and his indictment alleged that he had stolen a credit card, had
received a stolen credit card, and had fraudulently presented a credit card to pay
for goods and services. 175 S.W.3d at 740–41. The application paragraphs of
the jury charge instructed the jury to find Ngo guilty if the jury concluded that he
had committed any of the three acts in the indictment, and the jury charge did not

                                         8
      charge would need to instruct the jury that it has to be unanimous
      about which statutory provision, among those available based on the
      facts, the defendant violated.

Cosio, 353 S.W.3d at 771–72 (citations and footnotes omitted).

      None of the dangers for non-unanimity that the court of criminal appeals

described in Cosio or in Ngo are present in this case. Here, to obtain a burglary

conviction, the State charged appellant with committing only one criminal act:

entering a habitation, without consent, with the intent to commit a felony (in this

case, robbery). See Tex. Penal Code Ann. § 30.02(a)(1). The State was not

required to prove that appellant committed robbery; it was only required to prove

that he intended to do so when he entered Jorge’s habitation. See Gonzales v.

State, 517 S.W.2d 785, 788 (Tex. Crim. App. 1975); Cotton v. State, 645 S.W.2d

907, 908 (Tex. App.—Fort Worth 1983, no pet.). As the court of criminal appeals

explained in Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006), the

“gravamen of a burglary is the entry without the effective consent of the owner

and with the requisite mental state. . . .    The offense is complete once the

unlawful entry is made, without regard to whether the intended theft or felony is

also completed.” Thus, we conclude that under section 30.02 of the penal code,

the possible intended felonies that coordinate with a defendant’s entering a

habitation without consent do not create separate offenses, and the jury is not

required to be unanimous about the elements of those underlying felonies.

state that the jury was required to unanimously agree on which of the three acts
that Ngo committed. Id. at 742 & n.5.


                                        9
Instead, the jury must simply be unanimous that the defendant entered a

habitation with the intent to commit a felony. See White v. State, 208 S.W.3d

467, 468–69 (Tex. Crim. App. 2006) (holding that when the State alleged two

felonies that could have served as the basis for a felony murder conviction, the

jury was not required to be unanimous concerning which underlying felony that

the defendant had committed); Martinez, 129 S.W.3d at 103 (holding that a jury

was not required to agree on which underlying felony a defendant committed,

between robbery or aggravated sexual assault, when the jury convicted him of

capital murder); Davis v. State, 268 S.W.3d 683, 711 (Tex. App.—Fort Worth

2008, pet. ref’d) (explaining that jury unanimity is “not violated . . . when the jury

disagrees on alternate theories of the defendant’s mens rea at the time of the

offense” and therefore holding that the jury was not required to be unanimous

about which mental state the defendant had when he committed murder).

      Like the felony murder statute at issue in White, which required that the

defendant committed or attempted to commit “a felony” to sustain a felony

murder conviction, section 30.02(a)(1) required that appellant intended to commit

“a felony” to sustain appellant’s burglary conviction. See Tex. Penal Code Ann.

§ 30.02(a)(1); see also Ratliff v. State, 320 S.W.3d 857, 864 (Tex. App.—Fort

Worth 2010, pet. ref’d) (explaining that the question of what a jury must be

unanimous about is determined by the legislative intent of the applicable statute).

Thus, the jury was required to unanimously agree that appellant intended to

commit a predicate felony when he entered the habitation, and because robbery


                                         10
was the only felony alleged, the jury was required to unanimously agree that

appellant intended to commit robbery. See White, 208 S.W.3d at 468. But under

the rationale of the cases herein, and under the facts of this case, we hold that

the jury was not required to unanimously agree about whether, at the time

appellant entered the habitation, he intended to cause bodily injury or to threaten

bodily injury or death, which are the methods of committing robbery. See id.

(“[I]n cases like this, where some of the jurors might believe that the defendant

committed felony A and the rest of the jurors might believe that he committed

felony B, the jury has unanimously found that the defendant committed a

‘felony.’); see also Valdez v. State, 218 S.W.3d 82, 84–85 (Tex. Crim. App. 2007)

(holding that a jury was not required to unanimously decide which two of several

alleged prior felony convictions supported the enhancement of the defendant’s

punishment because the penal code’s enhancement provision states only that

the State is required to prove “two felony offenses”); Adeyanju v. State, No. 14-

08-00305-CR, 2009 WL 3371369, at *4–5 (Tex. App.—Houston [14th Dist.] July

7, 2009, pet. ref’d) (mem. op., not designated for publication) (holding that a jury

was not required to unanimously agree about how a defendant committed money

laundering when money laundering was a predicate offense of engaging in

organized criminal activity).

      For these reasons, we disagree with appellant’s contention that the guilt-

phase jury charge erroneously allowed for a non-unanimous verdict, and we

overrule his second point.


                                        11
                                 Conclusion

      Having overruled both of appellant’s points, we affirm the trial court’s

judgment.




                                                TERRIE LIVINGSTON
                                                CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 26, 2012




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