             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. PD-1448-13



                      CHARLES LAVOY ARRINGTON, Appellant

                                                v.

                                  THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FOURTH COURT OF APPEALS
                            BEXAR COUNTY

            A LCALA, J., delivered the opinion of the Court, in which K ELLER, P.J.,
and K EASLER, H ERVEY, R ICHARDSON, and N EWELL, JJ., joined. J OHNSON, J.,
concurred. M EYERS and Y EARY, JJ., did not participate.

                                         OPINION

       This case addresses whether a defendant suffers egregious harm from erroneous jury

instructions permitting a non-unanimous verdict when a jury confronted with two diametrical

positions reaches multiple verdicts signifying, in the aggregate, its belief in the credibility of

the State’s evidence and its disbelief in the defendant’s evidence. The State’s petition for

discretionary review argues that the court of appeals erred by determining that erroneous jury
                                                                                          Arrington -- 2

instructions permitting non-unanimous jury verdicts caused egregious harm to Charles Lavoy

Arrington, appellant. Arrington v. State, 413 S.W.3d 106, 118 (Tex. App.—San Antonio

2013). The State challenges the court of appeals’s judgment in favor of appellant that

reversed his six convictions, including five convictions for aggravated sexual assault of a

child and one conviction for indecency with a child by contact. We conclude that, by

improperly failing to consider all of the evidence that was admitted at trial and by finding

dispositive the jury’s inability to reach a verdict on a single count without considering other

rational reasons for the lack of a verdict on that single count, the court of appeals erroneously

determined that the faulty instructions egregiously harmed appellant. We reverse the

judgment of the court of appeals and remand this case for consideration of appellant’s other

issues on appeal.1

                                           I. Background

        A. The Facts and Trial Court Proceedings

        The complainant, H.A., is appellant’s daughter. H.A. and her younger brother lived



1

         Appellant raised five issues in the court of appeals: (1) the trial court committed jury-charge
error by failing to give a unanimity instruction as to each separate criminal incident alleged at trial,
as charged in each separate count in the indictment; (2) the trial court’s jury-charge error egregiously
harmed him; (3) alternatively, the trial court’s jury-charge error rendered his trial fundamentally
unfair in violation of the Due Process Clause of the Fourteenth Amendment of the United States
Constitution; (4) his trial counsel rendered ineffective assistance by failing to object to the State’s
elicitation of expert witness testimony about the truthfulness of the complainant’s sexual-misconduct
accusations; and (5) his trial counsel rendered ineffective assistance by failing to object to the State’s
elicitation of lay-witness testimony about the truthfulness of the complainant’s allegations.
Arrington v. State, 413 S.W.3d 106, 109 (Tex. App.—San Antonio 2013).
                                                                                Arrington -- 3

with their mother, who had separated from their father, appellant, when H.A. was very

young. H.A. and her younger brother visited appellant on occasional weekends and holidays

for several years. In 2010, H.A. made an outcry that during two of those visits earlier that

year, appellant had sexually abused her in numerous ways in four different places in

appellant’s homes. In 2010, H.A. was nine years old and her younger brother was eight

years old.

       H.A. indicated that the first time appellant sexually touched her was when appellant

was living with his mother, H.A.’s grandmother. Appellant’s room, in the back of the house,

had a mattress on the floor and a television. H.A. was lying awake on the mattress while her

younger brother sat at the foot of the mattress playing a video game. As he lay next to H.A.

on the mattress, appellant “stuck his hands down [her] pants” and “rubbed” her “vagina and

[her] butt.” H.A. said that she was scared and shocked and did not say or do anything as

appellant fondled her. H.A. testified specifically that appellant did not penetrate her female

sexual organ or her anus with his finger during this incident.

       The second event occurred in appellant’s shower during H.A.’s spring break later that

same year. At that time, having moved out of his mother’s house, appellant was cohabiting

with his girlfriend. H.A. and her brother visited appellant for a few days and slept on a

mattress in the living room during their stay. While appellant, H.A., and H.A.’s brother were

watching a movie in the living room, appellant told H.A. to take a shower in appellant’s

bathroom. While H.A. was showering, appellant turned the lights off in the bathroom and
                                                                                 Arrington -- 4

joined her in the shower. Appellant washed H.A.’s body, touching H.A.’s breast, female

sexual organ, and buttocks in the process. H.A. stated that appellant did not penetrate her

female sexual organ or her anus during this incident, but that he only put his hands on the

“front part” of her female sexual organ and on the “top part” of her buttocks. He then made

H.A. get down on her hands and knees and place his male sexual organ in her mouth. H.A.

tried to pull away but appellant held the back of her head. Appellant also forced H.A. to rub

his penis using a “back and forth” motion. At the subsequent trial, H.A. answered “yes” to

a single question asking whether appellant also placed his mouth on her vagina during this

incident. H.A., however, gave no details about that conduct.

       H.A. described the third event, explaining that it occurred the following day and again

in a shower, but this time it took place in the shower for guests, which H.A. used during her

visit. While H.A. was in the shower, appellant joined her there. Appellant rubbed and

digitally penetrated H.A.’s female sexual organ and anus, and H.A. recalled that it hurt.

Appellant then forced her to get on her hands and knees and he placed his male sexual organ

in H.A.’s mouth. During this incident, appellant also knelt down, “widened his legs around

[H.A.’s] legs,” and placed his male sexual organ in her female sexual organ. H.A. stated that

he was “humping” her by “moving his hips back and forth.” She stated that this hurt her.

H.A. also stated that during this encounter appellant placed his male sexual organ in her anus,

and that this hurt as well.

       The fourth event occurred the next day in the living room of appellant’s girlfriend’s
                                                                                 Arrington -- 5

house. After watching a movie together with H.A. and appellant on the mattress, H.A.’s

brother fell asleep. Appellant picked H.A.’s brother up and placed him on a nearby sofa,

leaving H.A. alone on the mattress with appellant. Appellant pushed her beneath the covers

on the mattress and forced her to place his male sexual organ in her mouth. H.A. gagged and

told him to stop. Appellant then fondled H.A.’s breasts, female sexual organ, and buttocks,

digitally penetrating her female sexual organ and anus. While facing each other on the

mattress, appellant placed his penis in her female sexual organ. After that, he turned her

around so that she was “facing away” from him and placed his penis “in [her] butt.” H.A.

described appellant as “humping” her in a back and forth motion. H.A. recalled that

appellant asked her if it “felt good,” and H.A. responded “no” as she pleaded for him to stop.

H.A. described that a clear gel that looked like “smushy stuff” came out of appellant’s penis

that made it slippery.

       Later that school year, after she had returned from spring break, H.A. told friends that

she was pregnant, and rumors spread throughout the school, ultimately reaching Lisa

McGinnis, H.A.’s school counselor. McGinnis questioned H.A. about the rumors and

informed H.A.’s mother about them. H.A. denied to her school counselor and to her mother

that she was pregnant or that she had been abused. H.A. said it was all a misunderstanding

and “she was just talking about, basically, where babies come from and her friends had

misunderstood her.” Two days later, on the last day of school, as the rumors persisted with

additional information that H.A. believed that her father was the father of the baby,
                                                                               Arrington -- 6

McGinnis again approached H.A. about the pregnancy rumors. During that conversation,

H.A. “became tearful and she told [McGinnis] that her father had touched her

inappropriately.”

       After H.A. made an outcry to her school counselor, a police investigation began and

H.A. was examined by a Sexual Assault Nurse Examiner. The nurse did not find any

physical evidence of the abuse during her examination. The nurse explained at trial,

however, that because of the two-month delay between the described sexual abuse and her

examination, the absence of physical findings was not inconsistent with H.A.’s report of

sexual abuse. The nurse conveyed H.A.’s numerous descriptions of the sexual abuse, as

described above.

       At his trial, appellant testified, denying that he had sexually abused H.A. He claimed

that H.A. was lying about everything and that H.A.’s mother had falsely accused him of rape

in the past. He presented testimony from his mother, with whom he lived during the first

event described by H.A., from his girlfriend, with whom he cohabited during the spring break

incidents described by H.A., and from H.A.’s brother.           These witnesses generally

corroborated that H.A. was with appellant during the periods of time that she described, but

they denied seeing anything unusual and described H.A. as acting normally. Appellant’s

girlfriend acknowledged that she was at work during points in time when H.A. was staying

at her house, but some of her testimony with respect to where she was during the periods

described by H.A. conflicted with H.A.’s testimony.
                                                                                  Arrington -- 7

       The indictment against appellant charged him with six counts of aggravated sexual

assault of a child and one count of indecency with a child. Counts one through five and

count seven alleged that, on or about March 26, 2010, appellant committed the offense of

aggravated sexual assault of a child by intentionally and knowingly (1) causing the

penetration of the female sexual organ of H.A. by appellant’s male sexual organ; (2) causing

the penetration of the anus of H.A. by appellant’s male sexual organ; (3) causing the female

sexual organ of H.A. to contact the mouth of appellant; (4) causing the penetration of the

mouth of H.A. by appellant’s male sexual organ; (5) causing the penetration of the female

sexual organ of H.A. by appellant’s finger; and (7) causing the penetration of the anus of

H.A. by appellant’s finger. Count six asserted a charge of indecency with a child by

intentionally and knowingly engaging in sexual conduct or contact on or about the same date

by causing H.A., who was under seventeen years of age, to touch part of the genitals of

appellant with the intent to arouse or gratify the sexual desire of any person.

       The trial court’s instructions to the jury permitted the jurors to consider whether

appellant was guilty of each of the seven alleged offenses. The jury instructions, however,

did not specifically inform the jurors that they had to be unanimous as to which separate

criminal act they believed constituted each count. Neither the State nor appellant objected

on the ground that the jury instructions permitted non-unanimous verdicts. Although the

instructions did not specifically identify the particular incidents as they corresponded to the

seven charges that were to be considered by the jury, the trial court’s jury instructions
                                                                                         Arrington -- 8

generally instructed the jurors that their verdict had to be unanimous. The instructions stated,

       After you retire to the jury room, you should select one of your members as the
       foreperson. It is his or her duty to preside at your deliberations, to vote with
       you and when you have unanimously agreed upon a verdict to certify to the
       verdict by signing the same as foreperson.

Neither the State nor appellant mentioned a unanimity requirement in their closing

statements, nor did they do so at any other point during the trial.

       Following deliberations, the jury found appellant guilty on six of the seven counts for

which he was indicted, including five counts of aggravated sexual assault and one count of

indecency with a child. The jury sentenced appellant to sixty years’ imprisonment for each

count of aggravated sexual assault of a child and twenty years’ imprisonment for indecency

with a child. The trial court ordered the sentences to run concurrently. Because of the jury’s

failure to reach a unanimous decision on count three, the trial court declared a mistrial on that

count that had alleged that appellant caused the female sexual organ of H.A. to contact his

mouth.2    Prior to announcing the verdict, the court asked the jury if it had reached a

unanimous verdict on all counts except count three, to which the jury foreman answered in

the affirmative.

       B. The Opinion by the Court of Appeals


2

        The State’s brief in this Court represents that the State dismissed count three after the trial
court declared a mistrial with respect to that count, but the clerk’s record shows that count three was
resolved by a “judgment of acquittal by jury.” It is immaterial to our resolution of this appeal
whether, after the trial court declared a mistrial based on the jury’s inability to reach a verdict when
count three was tried along with counts one through seven, count three was subsequently resolved
by a dismissal by the State or by acquittal.
                                                                                  Arrington -- 9

        On appeal, with respect to appellant’s claim of charge error, the court of appeals

determined that the record included evidence of more than one instance of sexual contact to

support each count for which appellant was convicted, and it further determined that no

unanimity instruction informed the jurors that they had to be unanimous about which instance

of abuse constituted the commission of the offense for purposes of each individual count.

Arrington, 413 S.W.3d at 112. It stated, “[G]uaranteeing unanimity is ultimately the

responsibility of the trial judge because the judge must instruct the jury on the law applicable

to the case.” Id. at 110 (citation omitted). On that basis, it reasoned that “the trial judge is

therefore obligated to submit a charge that does not allow for the possibility of a non-

unanimous verdict.” Id. The court of appeals further noted that “[t]he jury could have relied

on separate incidents of criminal conduct, which constituted different offenses or separate

units of prosecution, committed by appellant to find him guilty in the counts.” Id. at 110-11

(citing Cosio v. State, 353 S.W.3d 766, 774 (Tex. Crim. App. 2011)); see Francis v. State,

36 S.W.3d 121, 125 (Tex. Crim. App. 2000) (concluding there was error in failing to include

unanimity instruction and noting that “it is possible that six members of the jury convicted

appellant on the breast-touching offense (while the other six believed he was innocent of the

breast-touching) and six members convicted appellant on the genital-touching offense (while

the other six believed he was innocent of the genital-touching)”).

       The court of appeals discussed the particular acts that supported each count. With

respect to count one, which alleged that appellant’s male sexual organ penetrated H.A.’s
                                                                                  Arrington -- 10

female sexual organ, the court concluded that H.A.’s testimony presented evidence of two

separate criminal acts that would constitute this offense in her description of the events in her

shower and those occurring on the mattress in appellant’s girlfriend’s living room. Id. at 111.

With respect to count two, which asserted that appellant’s male sexual organ penetrated

H.A.’s anus, the court observed that H.A. described two different incidents that would

support this offense—the events in H.A.’s shower and the events on the mattress in

appellant’s girlfriend’s living room. Id. Count three alleged that appellant’s mouth contacted

the female sexual organ of H.A., and the court noted that evidence of only one incident of

that type of conduct was presented at trial—the events in appellant’s shower. Id. Count four

asserted that appellant’s male sexual organ penetrated H.A.’s mouth, and the court

determined that evidence of three different incidents supported this offense—the events in

appellant’s shower, in H.A.’s shower, and on appellant’s girlfriend’s living-room mattress.

Id. Count five alleged that appellant’s finger penetrated H.A.’s female sexual organ, and the

court observed that two different incidents supported this offense—the events in H.A.’s

shower and those occurring on the mattress in appellant’s girlfriend’s living room. Id. Count

six pleaded a charge of indecency with a child by causing H.A. to touch appellant’s genitals,

and the court determined that evidence of multiple incidents supported this offense, some of

which may have been subsumed within the aggravated sexual assault offenses. Id. Count

seven alleged that appellant’s finger penetrated H.A.’s anus, and the court noted that two

different incidents supported this offense—the events in H.A.’s shower and the events
                                                                                 Arrington -- 11

occurring on appellant’s girlfriend’s living-room mattress. Id. at 112.

       The court of appeals held that, because evidence of multiple instances of criminal

conduct constituting the offenses was presented at trial, an instruction on juror unanimity as

to those particular incidents was required. Id. (citing Cosio, 353 S.W.3d at 772). In the court

of appeals, the State conceded that the instructions were erroneous, and it has not challenged

that determination in this petition for discretionary review.

       The court of appeals further held that the erroneous jury instructions egregiously

harmed appellant and, on that basis, it reversed his six convictions and remanded the case to

the trial court for a new trial. Id. at 118. The court of appeals found the existence of

egregious harm by observing that the entire jury instructions did not require a unanimous jury

on any of the counts, that the State’s evidence was weak, and that the hung jury in count

three, the only count supported by a single incident, necessarily signified that the jury relied

on multiple incidents to support each of the other counts. Id. at 117-18. The State challenges

this holding in its petition for discretionary review, which asks “[w]hether the Fourth Court

of Appeals based its egregious harm finding on theoretical harm instead of actual harm as

required by Almanza when an unpreserved jury charge error occurs.”

                                         II. Analysis

       In support of its position that the court of appeals erred in its application of Almanza,

the State argues that the lower court’s opinion has expanded the scope of actual harm to

encompass elements unrelated to charge error. The State also argues that the court of appeals
                                                                                  Arrington -- 12

undermined the jury’s credibility determination of the complainant’s testimony by failing to

fully review the entirety of the evidence in the record. Appellant responds that the court of

appeals conducted a proper harm analysis and reached the correct result. We conclude that,

although the court of appeals properly articulated the applicable law for assessing whether

egregious harm exists, it erred in its application of the law to the facts of the case by failing

to consider the entire record, which resulted in the reversal of appellant’s convictions for

theoretical rather than actual harm.

       The court of appeals correctly articulated the applicable law by observing that reversal

for an unobjected-to erroneous jury instruction is proper only if the error caused actual,

egregious harm to an appellant. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App.

2005). “An egregious harm determination must be based on a finding of actual rather than

theoretical harm.” Cosio, 353 S.W.3d at 777. Actual harm is established when the erroneous

jury instruction affected “the very basis of the case,” “deprive[d] the defendant of a valuable

right,” or “vitally affect[ed] a defensive theory.” Id. (citing Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985) (op. on reh’g)).

       In describing the applicable law, the court of appeals properly observed that an

appellate court should examine four factors to determine whether an appellant was

egregiously harmed by an erroneous jury instruction. When assessing harm based on the

particular facts of the case, we consider (A) the entire jury charge; (B) “the state of the

evidence[,] including contested issues and the weight of the probative evidence”; (C) the
                                                                               Arrington -- 13

parties’ arguments; and (D) all other relevant information in the record. Id. (citations

omitted). The court of appeals also accurately observed that the Almanza analysis is fact

specific and is done on a “case-by-case basis.” Gelinas v. State, 398 S.W.3d 703, 710 (Tex.

Crim. App. 2013).

       A. The Entire Jury Charge

       The court of appeals properly observed that this factor weighs in favor of finding

egregious harm because the instructions “permitted non-unanimous verdicts based on the

evidence presented in the case.” Arrington, 413 S.W.3d at 112. The court of appeals also

accurately noted that the “only mention of the word ‘unanimous’ in the entire charge” was

the boilerplate language regarding selection of the jury foreman that required the foreman

to certify the jury’s verdict “when you have unanimously agreed upon a verdict.” Id. The

court of appeals concluded that the “error did not affect only one count, but instead affected

all counts upon which appellant was convicted. Therefore, this factor weighs in favor of

finding egregious harm.” Id.

       The court of appeals observed that the facts in this case were similar to the facts in

Cosio, a case in which this Court determined that the erroneous instructions did not

egregiously harm Cosio. The court of appeals, however, distinguished the present case on the

basis that there were multiple generic unanimity instructions in Cosio as compared to only

a single generic unanimity instruction here. See Arrington, 413 S.W.3d at 117 (discussing

Cosio, 353 S.W.3d at 770). In Cosio, the defendant was convicted of two counts of
                                                                                  Arrington -- 14

aggravated sexual assault of a child and two counts of indecency with a child by contact,

each supported by evidence of multiple incidents of criminal conduct. Cosio, 353 S.W.3d at

769. In that case, the jury was given multiple instructions on unanimity, but none was

adequate to appropriately inform the jurors that this meant they had to be unanimous as to

which incident of criminal conduct they believed constituted each count in the indictment.

Id. at 774. We conclude that the court of appeals erred by focusing on the number of times

the instructions informed the jury of a generic unanimity requirement because, regardless of

the number of times the generic requirement was mentioned, the entire instructions failed to

apprise the jurors that they had to be unanimous on which incident of criminal conduct they

believed constituted each count in the indictment. See Cosio, 353 S.W.3d at 774. The

multiple generic instructions in Cosio, therefore, were no more effective at informing the jury

of the proper unanimity requirement than the single generic unanimity instruction given in

this case.   See id.   We, therefore, disagree with the court of appeals that Cosio is

distinguishable merely because the generic instructions were multiply given. Because the

entire charge did not apprise the jury of the proper unanimity requirement, we conclude that

this factor weighs in favor of finding egregious harm, but we give this factor no more weight

than we gave it in Cosio. See id.

       B. The State of the Evidence

       The court of appeals properly described the applicable law with respect to the analysis

of the state of the evidence, but it erred by failing to consider the entire record. The court of
                                                                                 Arrington -- 15

appeals correctly noted that, under this prong of an egregious harm review, we look to the

state of the evidence to determine whether the evidence made it more or less likely that the

jury charge caused appellant actual harm. See, e.g., Ngo, 175 S.W.3d at 751-52. The court

of appeals ultimately characterized the state of the evidence by stating,

       Given that the opinions on H.A.’s truthfulness went without objection in a case
       where it was essentially appellant’s word against H.A.’s (there were no
       witnesses and no DNA/medical evidence), we believe the state of the evidence
       factor weighs slightly in favor of finding egregious harm when, as here, there
       was no unanimity instruction and the question of whether appellant committed
       any of the acts is obviously the contested issue at trial.

Arrington, 413 S.W.3d at 115. The court of appeals observed that the lack of definitive

medical evidence resulted in a “he said, she said” between H.A. and appellant. Id. at 113. The

court also questioned H.A.’s credibility by noting that H.A. first denied having been sexually

abused by appellant when she was initially questioned about it by her school counselor. Id.

at 113-14. Although it appropriately considered pieces of the record that showed the lack of

medical findings and H.A.’s inconsistent statements, the court of appeals erred by failing to

consider the entire record, which, when viewed as a whole, weighs against a finding of

egregious harm for the following three reasons.

       First, as the State points out, the court of appeals failed to consider the entire record

that shows that the jury disbelieved appellant’s defensive evidence. In this regard, the State

contends in its brief that the jury had “both sides to evaluate” and that the court of appeals

“did not even mention that [appellant] and his girlfriend testified.” The State suggests that

appellant’s “trial strategy left the jury with an all-or-nothing decision, either he was guilty
                                                                                 Arrington -- 16

or he was not.” As support for its argument that this type of strategy weighs against a finding

of egregious harm, the State cites to Ruiz v. State, 272 S.W.3d 819, 826-27 (Tex.

App.—Austin 2008, no pet.). In Ruiz, the court of appeals held that the state of the evidence

weighed against an egregious harm finding because Ruiz did not argue he was guilty of only

some of the allegations, but rather argued that he had committed none of the alleged conduct

and that the complainant in that case was lying to manipulate her parents or to get revenge

on Ruiz. Id. Similarly, here, appellant denied that he had ever seen H.A. naked or that he had

any inappropriate sexual contact with her. Appellant claimed that H.A.’s mother had in the

past falsely accused him of rape, implicitly suggesting that she may have prompted H.A. to

tell the lies against him. If the jury had believed appellant’s testimony, then it would have

found him not guilty of all of the counts of sexual abuse. Instead, in finding him guilty of

all but one of the numerous counts of sexual abuse, the jury necessarily disbelieved

appellant’s defensive evidence. We, therefore, agree with the State that the court of appeals

erred by considering a small portion of the record without appropriately examining the

analytical meaning of the entire record, including the jury’s rejection of appellant’s defensive

theory.

          Second, the State challenges the analysis by the court of appeals weighing evidence

that H.A.’s mother and school counselor believed that H.A. was telling the truth as

supporting a finding of egregious harm because that was inadmissible bolstering evidence.

We agree with the State that the evidence from H.A.’s mother and school counselor that they
                                                                                   Arrington -- 17

believed H.A. was telling the truth is not evidence that weighs in favor of a finding of

egregious harm. The court of appeals observed that the school counselor gave her opinion

that H.A. was truthful in her accusations against appellant and that expert testimony that a

particular witness is truthful is inadmissible under Rule 702. T EX. R. E VID. 702; See Yount

v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993). The school counselor stated,

       I felt that she was telling me the truth based on the fact that she had details, for
       example, what movie they were watching; that her brother was playing
       PlayStation when it happened when she was nine; that she could very much put
       herself in the situation of what was going on exactly at that time. Those were
       the things that made me feel like she was telling the truth.

Although the court of appeals was correct that it would likely have been inadmissible had

appellant objected to it at trial, the evidence was admitted for all purposes at the trial and was

before the jury to consider in finding appellant guilty. See Hammock v. State, 46 S.W.3d

889, 892 (Tex. Crim. App. 2001) (“Once evidence is received without a limiting instruction,

it becomes part of the general evidence and may be used for all purposes”).

       Similarly, the court of appeals erred by disregarding evidence from H.A.’s mother that

had been admitted for all purposes at appellant’s trial. Regarding H.A.’s truthfulness, H.A.’s

mother stated, “She tells the truth.” H.A.’s mother also testified that, when she asked H.A.

if she was telling the truth, H.A. “said yes and she started crying.” Because appellant’s

counsel did not object to this evidence, it was admitted for all purposes, and the jury could

properly consider it as evidence of appellant’s guilt. See id.3


3

       We do not know appellant’s trial counsel’s reasons for permitting H.A.’s mother and school
                                                                                       Arrington -- 18

       An appellate court should not disregard evidence that was admitted for all purposes

at a trial merely because it believes that a trial court could have excluded the evidence had

a proper objection been presented. See id. In deciding egregious harm, an appellate court

must examine whether an appellant suffered actual harm from the jury instruction as

compared to theoretical harm that might have resulted had the case been litigated differently.

Almanza, 686 S.W.2d at 174. We conclude, therefore, that the court of appeals’s improper

focus on theoretical harm resulted, in part, from its disregard of evidence from the

complainant’s mother and school counselor on the basis that the evidence would have been

inadmissible, had appellant properly objected to it. See id.

       Third, the court of appeals also noted that the school counselor described the first

conversation she had with H.A. differently than H.A. described it and that, in light of the

absence of medical evidence, this undermined the complainant’s credibility and weighed in

favor of finding egregious harm. The school counselor conveyed H.A.’s first explanation as

H.A. talking with her friends about “where babies come from and her friends had

misunderstood her.” In contrast, H.A. claims that she first told her school counselor that the

rumors were “just a joke” and she told her mother that “it was just a joke that my friend made




counselor to testify that they believed that H.A. was telling the truth. There may have been a rational
trial strategy for permitting the evidence without objection. Appellate courts are required to presume
that a trial counsel had a rational trial strategy. See, e.g., Chambers v. State, 903 S.W.2d 21, 32-33
(Tex. Crim. App. 1995) (noting that, in reviewing claims of ineffective assistance of counsel, an
appellate court must indulge a strong presumption that counsel’s action was based on sound trial
strategy). In any event, the reasonableness of counsel’s trial strategy is not before us in this appeal,
and we do not consider that matter in conducting our egregious-harm analysis.
                                                                                   Arrington -- 19

me do.” H.A. said that she lied to her mother at that point because she was “super scared that

someone can hurt me and come find me.” There were other inconsistencies in H.A.’s

testimony regarding the types of sexual contact that occurred during each of the four

instances of abuse. Specifically, she first testified that appellant did not penetrate her anus

with his male sexual organ during the incident in H.A.’s shower, but later testified that he did

in fact penetrate her anus with his male sexual organ during that encounter. We disagree with

the court of appeals that mere inconsistencies in a complainant’s testimony alone warrant a

finding of egregious harm. The court of appeals failed to consider that, in deciding to convict

appellant of six counts, the jury necessarily found the complainant credible. Although H.A.

may have been inconsistent in attempting to explain the reason for the existence of the

rumors, and was somewhat inconsistent as to the types of abuse that appellant inflicted upon

her during each of the four incidents, the jury clearly resolved any inconsistencies in favor

of H.A., and not appellant. We cannot conclude that any slight inconsistency in H.A.’s

testimony had any actual effect on the unanimity of the jury’s verdict.

       The court of appeals erred by disregarding evidence that was admitted for all purposes

at the trial and by failing to consider the entire record. The jury in this case, after hearing all

the evidence, clearly credited H.A.’s story and did not believe appellant’s categorical denial

of all accusations. Had it believed appellant rather than H.A., it would have acquitted him

of all charges. Because the entire record fails to show actual harm to appellant, this factor

weighs against a finding of egregious harm.
                                                                                 Arrington -- 20

       C. The Parties’ Arguments

       The court of appeals properly described the applicable law and correctly determined

that this factor weighs neither in favor of nor against a finding of egregious harm. See Cosio,

353 S.W.3d at 777 (noting neither the parties nor the trial court added to charge error by

telling jury it did not have to be unanimous and, therefore, this factor did not weigh in favor

of finding egregious harm). Under this factor, we look to whether any statements made by

the State, appellant, or the court during the trial exacerbated or ameliorated error in the

charge. See, e.g., Ngo, 175 S.W.3d at 750. In Ngo, this Court found egregious harm when

the jury charge did not contain a unanimity instruction and the jury was repeatedly told it

need not return a unanimous verdict. Id. at 752. In contrast, in the present case, neither the

State nor appellant told the jurors that they must be unanimous about which criminal episode

constituted each offense, nor were they told that they need not be unanimous. This factor,

therefore, weighs neither for nor against finding egregious harm.

       D. Other Relevant Information in the Record

       Under this prong, appellant argues, and the lower court’s opinion held, that the

mistrial declared in count three of the indictment against appellant is evidence of actual harm.

Arrington, 413 S.W.3d at 116. Contrary to the lower court’s opinion, however, the mistrial

on count three fails to suggest actual harm to appellant because the evidence supporting

count three was different in character from the evidence supporting the six counts for which

the jury convicted appellant.
                                                                               Arrington -- 21

       The court of appeals observed that “Count III was the only count on which evidence

of only one incident was presented that would constitute the offense—the first shower,” and

that was the only count on which the jury was unable to reach a verdict. Id. The court of

appeals concluded that, because the jury was unable to reach a verdict on the one count for

which evidence of only one instance of abuse constituting the offense was presented, “this

information in the record is relevant and weighs in favor of finding egregious harm.” Id. The

court of appeals quoted the portion of the trial at which the evidence supporting count three

was introduced:

       [State’s Attorney]: Did he ever touch his mouth to your middle or your girl
                           parts or your vagina?

       [H.A.]:               Yes.

       [State’s Attorney]: When did he do that?

       [H.A.’s]:             In the shower the first time.

       [State’s Attorney]: In the shower the first time?

       [H.A.]:               Yes.

Id. We also note that, in addition to this evidence, the nurse testified to the following:

       [State’s Attorney]: At any time did she indicate that he had kissed her front
                           and middle parts?

       [Nurse]:              Yes.

       [State’s Attorney]:   So she indicated that he had also contacted her genital area with
                             his mouth?

       [Nurse]:              Yes.
                                                                                  Arrington -- 22

Later in the nurse’s testimony, an additional exchange took place:

       [State’s Attorney]: She also mentioned that he kissed her middle part?

       [Nurse]:              Yes.

       [State’s Attorney]: And that would be contact from his mouth to her genitals?

       [Nurse]:              Yes.

The nurse’s “yes” answers to the State’s questions and her representation about the isolated

comment by H.A., combined with H.A.’s testimony described above, constituted the sole

evidence supporting count three’s allegation of oral contact with H.A.’s female sexual organ.

       By way of comparison, the other counts were supported by H.A.’s descriptions in

great detail that included, among other matters, the position of her body, the position of

appellant’s body, her feelings, and her attempts to stop appellant. For example, with respect

to the incident in appellant’s shower, H.A. described details that appellant made her get down

on her hands and knees, placed his penis in her mouth, and that she tried to pull away but

appellant held the back of her head. She also explained that appellant forced her to rub his

penis using a “back and forth” motion. It is just as likely that count three was rejected

because a juror was dissatisfied with the relative lack of detail in the evidence to support that

count as it is that it was rejected because there was only a single incident to support the

allegation of oral to vaginal contact. In any event, because there is at least one other

reasonable explanation for the hung jury in count three other than the fact that there was only

one incident supporting it, we cannot conclude that this is a rational basis for finding
                                                                                Arrington -- 23

egregious harm. Even if a juror or jurors believed that the fact that a single incident was

inadequate to support a conviction in count three, that does not suggest that any of the jurors

were less than unanimous on all of the other incidents, which were described by the

complainant in great detail. This factor, therefore, does not weigh in favor of a finding of

egregious harm.

       E. Consideration of the Four Factors

       The only factor that weighs in favor of finding egregious harm is the consideration of

the jury instructions. In Cosio, this Court found no egregious harm even though in that case

that particular factor also weighed in favor of finding egregious harm. See Cosio, 353

S.W.3d at 777-78. Here, we similarly conclude that the erroneous jury instructions did not

cause appellant egregious harm. See id. Although the instructions failed to identify the

particular acts necessary to support each count, the evidence in the entire record and the

analytical meaning of the jury’s verdicts in the aggregate show that the erroneous instructions

did not cause actual harm to appellant.

                                       III. Conclusion

       We hold that the court of appeals erred by finding egregious harm based on the

existence of theoretical rather than actual harm. Accordingly, we reverse the judgment of

the court of appeals and remand this case to that court for consideration of appellant’s

remaining points of error.
                              Arrington -- 24

Delivered: January 14, 2015

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