      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00390-CR
                                        NO. 03-13-00391-CR
                                        NO. 03-13-00392-CR



                                     Andria Stanley, Appellant

                                                   v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
            NOS. D-1-DC-12-300267, D-1-DC-12-300754, & D-1-DC-12-300755
            THE HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury convicted appellant Andria Stanley of four felony offenses—two counts of

family violence aggravated assault, see Tex. Penal Code § 22.02(a)(1), (2), aggravated kidnapping,

see id. § 20.04, and burglary of a habitation, see id. § 30.02(a)(1)—all arising out of a visit she made

to her ex-husband’s home in the middle of the night. The jury assessed appellant’s punishment at

confinement in the Texas Department of Criminal Justice for 50 years and 20 years for the assault

offenses, see id. §§ 12.32, 12.33, 22.02(b)(1), 50 years for the kidnapping offense, see id. §§ 12.32,

20.04(c), and 50 years for the burglary offense, see id. §§ 12.32, 30.02(d). On appeal, appellant

complains about the admission of evidence and the denial of a requested jury charge instruction.

Finding no reversible error, we affirm the judgments of conviction for the first count of family

violence aggravated assault (Count I in appeal number 03-13-00390-CR), the aggravated
kidnapping (appeal number 03-13-00391-CR), and the burglary of a habitation (appeal number

03-13-00392-CR). However, through our own review of the record, we have found non-reversible

clerical error in the written judgment of conviction for the second count of family violence

aggravated assault (Count III in appeal number 03-13-00390-CR1). We modify that judgment to

correct the error and affirm that judgment of conviction as modified.


                                           DISCUSSION2

                In two points of error, appellant asserts that the trial court erred by (1) admitting an

agreed protective order from a family law proceeding involving appellant and her ex-husband, and

(2) failing to include her requested instruction regarding jury unanimity on the burglary of a

habitation in the jury charge.


                                  Admission of Protective Order

                At the time the instant offenses were committed, appellant and her ex-husband, Jason

Witt, were involved in post-divorce family law proceedings concerning the custody of their two

children. At appellant’s trial, the State offered a copy of an agreed protective ordered entered in

those proceedings, State’s Exhibit #71, which contained a finding that appellant “caused serious

bodily injury to [Witt].” Appellant objected to the admission of the protective order, asserting that

her family law attorney provided ineffective assistance of counsel by advising her to agree to the

        1
         The State abandoned Count II of the indictment, which also alleged family violence
aggravated assault, during trial prior to closing its case-in-chief.
        2
          Because the parties are familiar with the facts of these cases, their procedural histories, and
the evidence adduced at trial, we limit recitation of them in this opinion to those necessary to advise
the parties of the Court’s decisions and the basic reasons for them. See Tex. R. App. P. 47.1, 47.4.

                                                   2
protective order in the family law proceedings. The trial court overruled appellant’s objection and

admitted the order as a statement against interest as well as an admission of a party opponent. See

Tex. R. Evid. 803(24) (providing that statement against penal interest not excluded by hearsay rule),

801(e)(2) (providing that admission by party opponent is not hearsay).

               We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Sandoval v. State,

409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). A trial court abuses its discretion only

if its determination “lies outside the zone of reasonable disagreement.” Martinez v. State,

327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim.

App. 2007); Sandoval, 409 S.W.3d at 281. We consider the ruling in light of what was before the

trial court at the time the ruling was made and uphold the trial court’s decision if it lies within the

zone of reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009);

Sandoval, 409 S.W.3d at 281. If the trial court’s evidentiary ruling is correct on any theory of law

applicable to that ruling, we will uphold that decision. De La Paz v. State, 279 S.W.3d 336, 344

(Tex. Crim. App. 2009); Sandoval, 409 S.W.3d at 297.

               To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence both deficient performance by counsel and prejudice suffered by the

appellant.3 Strickland v. Washington, 466 U.S. 668, 687 (1984); Nava v. State, 415 S.W.3d 289, 307


       3
         For the sake of our discussion, we will assume without deciding that appellant was entitled
to the effective assistance of counsel under Strickland at the protective order hearing, a civil
proceeding separate from the criminal proceeding. See Strickland v. Washington, 466 U.S. 668, 687
(1984) (setting forth standard of review for analyzing claim of ineffective assistance of counsel in
criminal case).

                                                  3
(Tex. Crim. App. 2013). The appellant must first demonstrate that counsel’s performance fell below

an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S.

at 687–88; Nava, 415 S.W.3d at 307. The appellant must then show the existence of a reasonable

probability—one sufficient to undermine confidence in the outcome—that the result of the

proceeding would have been different absent counsel’s deficient performance. Strickland, 466 U.S.

at 694; Nava, 415 S.W.3d at 308. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700;

see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

                Appellate review of counsel’s representation is highly deferential; we must “indulge

in a strong presumption that counsel’s conduct was not deficient.” Nava, 415 S.W.3d at 307–08;

see Strickland, 466 U.S. at 686. To rebut that presumption, a claim of ineffective assistance must

be “firmly founded in the record,” and “the record must affirmatively demonstrate” the meritorious

nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012);

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Moreover, “[t]he mere fact that

another attorney might have pursued a different course of action . . . does not suffice to prove a claim

of ineffective assistance of counsel.” Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App.

2012); see Munoz v. State, No. 03-12-00809-CR, 2014 WL 6208654, at *5 (Tex. App.—Austin Nov.

14, 2014, pet. ref’d) (mem. op., not designated for publication); Harris v. State, 125 S.W.3d 45, 54

(Tex. App.—Austin 2003, pet. ref’d, untimely filed).

                At trial, appellant called the attorney who represented her in the family law

proceedings to testify, outside the jury’s presence, about his advice to her that she agree to the



                                                   4
protective order in lieu of testifying at the protective order hearing.4 Her attorney testified that he

advised her to agree to the protective order in lieu of testifying at the hearing based on “[his] concern

that she would state something inadvertently on the record that would harm her greatly in her

criminal case.” He said that he “didn’t want any more information being put on the record in a case

related to anything related to this relationship because I didn’t want it to be used against her in the

criminal case.” In her objection at trial and in her argument on appeal, appellant maintains that this

was faulty legal advice because she could have invoked her Fifth Amendment right against

self-incrimination as to any topics that might adversely affect her criminal case. However, her family

law counsel averred that he and appellant had been “very close friends for a long period of time”

before he began representing her in the family law matters. He expressed his understanding that the

family law judge presiding over the protective order hearing would have granted appellant’s

invocation of the Fifth Amendment right regarding the events forming the basis of the instant

criminal charges, but indicated that “there were ancillary matters that possibly could have affected

what went on.” Appellant’s family law attorney stated:


               At that point, honest to goodness, my only concern to her was to avoid her
        stepping in land mines that she set for herself, which she has a tendency to do, and




        4
          At the time of the instant offenses, a hearing regarding final arrangements for custody and
child support was pending. Also pending was a contempt proceeding relating to appellant’s failure
to comply with the family law court’s previously entered order. Upon learning that his client had
been assaulted and shot, Witt’s family law attorney filed an application for a protective order. All
of these issues were taken up at the final hearing. In her brief, appellant conflates the contempt
hearing and the protective order hearing. However, it is clear from the record that these hearings,
relating to mutually exclusive issues, were separate and distinct, although scheduled on the same
date, and the legal advice at issue related only to the protective order hearing.

                                                   5
       I didn’t want something to happen to her in the criminal case [sic] that affected her
       here. That was my biggest concern.
       ...
                Because my concern was that she would say something that would harm her
       in this criminal case in some way, shape or form. Because I had recently just gone
       over the whole family law case. It’s voluminous. It’s a huge file.
       ...
                I read everything in that file and there [were] a lot of things that were said and
       done during the course of the family law case that concerned me, and my concern
       was she’s going to do something like this again on the witness stand and it’s going
       to hurt her in the criminal case.


               Appellant asserts in her brief that counsel’s testimony “betrays a misunderstanding

of the scope of the Fifth Amendment privilege.” This argument assumes that the ancillary matters

counsel referenced were matters to which she could have invoked her Fifth Amendment right and

remained silent. However, while appellant’s family law attorney repeatedly expressed his concern

about appellant testifying about matters that could be used against her in the criminal proceeding,

he did not express that these were matters exposing her to criminal liability or criminal responsibility

to which she could have invoked her right to remain silent. This is an assumption appellant makes,

which is not founded in the record. See Villa v. State, 417 S.W.3d 455, 463 (Tex. Crim. App. 2013)

(“[C]ounsel’s alleged deficiency must be affirmatively demonstrated in the trial record.”). In fact,

the tenor of counsel’s testimony suggested otherwise.

               Furthermore, in testifying about the circumstances under which he advised appellant

to agree to the protective order, counsel indicated that it was ultimately appellant’s decision:


       I strongly suggested that she sign it. I didn’t force her to do anything, but I said in my
       legal opinion I think you need to sign this, I think the Court is going to grant it either
       way, and I think that it’s in your best interest to sign this to keep from getting into
       any ancillary matters that may hurt you in your criminal case.

                                                   6
Counsel also recounted the fact that appellant insisted on making some changes to the order before

signing it.

               Based on the testimony of appellant’s family law attorney regarding his personal

acquaintance with appellant, his familiarity with the family law case, and his knowledge of the

relationship between appellant and her ex-husband, the trial court could have reasonably concluded

that counsel’s advice to her at the protective order hearing was the product of an informed strategic

and tactical decision, which appellant agreed with and followed at the time but later criticized in a

self-serving attempt to exclude her admission. Based on the record before it, the trial court could

have reasonably found that counsel’s performance did not fall below an objective standard of

reasonableness under prevailing professional norms—that is, that appellant failed to demonstrate

deficient performance on the part of her family law counsel. See Frangias v. State, 450 S.W.3d 125,

136 (Tex. Crim. App. 2013) (“[U]nless there is a record sufficient to demonstrate that counsel’s

conduct was not the product of an informed strategic or tactical decision, a reviewing court should

presume that trial counsel’s performance was constitutionally adequate ‘unless the challenged

conduct was so outrageous that no competent attorney would have engaged in it.’”) (quoting

Goodspeed, 187 S.W.3d at 392). Accordingly, we conclude that the trial court did not abuse its

discretion in admitting the protective order into evidence at appellant’s trial.

               Moreover, even assuming the trial court erred in admitting the protective order into

evidence, we would nevertheless conclude that the error did not constitute reversible error. See Tex.

R. App. P. 44.2(b). The erroneous admission of evidence is non-constitutional error. Kirby v. State,

208 S.W.3d 568, 574 (Tex. App.—Austin 2006, no pet.); see Coble v. State, 330 S.W.3d 253, 280



                                                  7
(Tex. Crim. App. 2010); Casey, 215 S.W.3d at 885. Non-constitutional error is reversible only if

it affects the substantial rights of the defendant. See Tex. R. App. P. 44.2(b); Barshaw v. State,

342 S.W.3d 91, 93 (Tex. Crim. App. 2011). We will not overturn a criminal conviction for

non-constitutional error if, after examining the record as a whole, we have fair assurance the error

did not influence the jury, or influenced the jury only slightly. Barshaw, 342 S.W.3d at 93; Kirby,

208 S.W.3d at 574.

               In assessing potential harm, our focus is not on whether the outcome of the trial was

proper despite the error but on whether the error had a substantial or injurious effect or influence on

the jury’s verdict. Barshaw, 342 S.W.3d at 93–94. We review the entire record to ascertain the

effect or influence on the verdict of the wrongfully admitted evidence. Id. at 93; see Coble,

330 S.W.3d at 280 (in conducting harm analysis “we examine the entire trial record and calculate,

as much as possible, the probable impact of the error upon the rest of the evidence”); see also Moon

v. State, 44 S.W.3d 589, 595 (Tex. App.—Fort Worth 2001, pet. ref’d). We consider all the

evidence that was admitted at trial, the nature of the evidence supporting the verdict, the character

of the alleged error, and how the evidence might be considered in connection with other evidence

in the case. Barshaw, 342 S.W.3d at 94. We may also consider the jury instructions, the parties’

theories of the case, closing arguments, voir dire, and whether the State emphasized the error. Id.;

Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

               In his testimony at trial, appellant’s ex-husband described the events of that night,

providing details of appellant’s unauthorized entry into his home and the ensuing attack. He testified

that he awoke during the night to sounds in his bedroom. He saw a figure and then was struck in the



                                                  8
head with a wooden baton-like object. He attempted to defend himself, struggling with his assailant.

His attacker yelled, and Witt recognized the voice as appellant. Appellant then fired a gun at Witt,

and he turned on the lights and saw appellant standing with a gun in her hand. Holding the gun on

him, appellant demanded that he make concessions in their ongoing custody battle. Witt recounted

how appellant then forced him at gunpoint to lie face down on the bed and bound his hands behind

his back and bound his feet at the ankles. She next wrapped him up in the bed sheets, sat him up on

the bed, and wrapped plastic wrap around his head. Panicked, Witt began to struggle and fell to the

floor. As he lay on the floor, appellant struck him repeatedly on the back of the head with the

wooden object. As he struggled, Witt managed to free one hand and his feet. He then attempted to

get the gun, which was at the end of the bed, as did appellant. As they struggled for the gun,

appellant fired the gun at Witt, striking him in the face. They continued to struggle over the gun, and

eventually Witt gained control of the gun. He struck appellant with the barrel of the gun, pushed her

out of his bedroom, and managed to secure and lock his bedroom door. He then locked himself in

his bathroom and called 911.

               Witt’s testimony was corroborated by physical evidence recovered from his home

(including a broken wooden baton and roll of plastic wrap, both with appellant’s and Witt’s DNA

on them) and from appellant (blood containing Witt’s DNA on the bottom of one of the shoes she

wore that night), photographic evidence depicting Witt’s injuries (which included a gunshot wound

to his cheek as well as contusions and lacerations to his face and head, some of which required

staples and sutures, and ligature marks on his wrists), medical evidence from treating hospital

physicians, police officers’ testimony regarding Witt’s condition and demeanor when they arrived



                                                  9
at his home (including his initial refusal to come out of his locked bathroom until he was convinced

it was in fact the police, and the fact that he was covered in blood when he eventually emerged), as

well as the testimony of appellant’s mother regarding admissions appellant made upon her return

from Austin (that she went to visit Witt, that she had her mother’s gun with her, that the gun “went

off,” and that Witt “might have been hit”). The prosecutors did not mention the protective order in

closing argument, nor did the State overly emphasize the protective order otherwise.

               After examining the record as a whole, including the strength of the State’s case, we

have fair assurance that the admission of the protective order, if it was error, did not influence the

jury or had but a slight effect. Therefore, any error in admitting the order was harmless.

               We overrule appellant’s first point of error.


                         Denial of Requested Jury Charge Instruction

               In her second point of error, appellant complains about the trial court’s failure to

include her requested jury charge instruction concerning unanimity on the burglary of a habitation

charge and argues that she was harmed by the omission of such an instruction. The burglary




                                                 10
indictment in this case charged appellant with burglary of a habitation in four separate paragraphs,5

alleging (in relevant part) that appellant did then and there


        with intent to commit the felony offense of Aggravated Assault, enter a habitation,
        without the effective consent of Jason Witt, the owner thereof . . .

        intentionally or knowingly enter a habitation, without the effective consent of Jason
        Witt, the owner thereof, . . . and attempted to commit or committed the felony of
        Aggravated Assault, . . .

        with intent to commit the felony offense of Kidnapping, enter a habitation, without
        the effective consent of Jason Witt, the owner thereof, . . . [or]

        intentionally or knowingly enter a habitation, without the effective consent of Jason
        Witt, the owner thereof, . . . and attempted to commit or committed the felony of
        Kidnapping, . . . .6




        5
           The four paragraphs were originally contained in the indictment as separate counts.
However, prior to the start of trial, the State abandoned—without objection from appellant—the
count language in order to present four alternative paragraphs. See Martinez v. State,
225 S.W.3d 550, 554 (Tex. Crim. App. 2007) (“When the State wishes to charge multiple offenses
in a single indictment, it is required by statute to set out each separate offense in a separate “count.”
Then separate “paragraphs” within a single count may allege different methods of committing the
same offense.” (citing Tex. Code Crim. Proc. art. 21.24(a), (b))); Owens v. State, 96 S.W.3d 668, 673
(Tex. App.—Austin 2003, no pet.) (“As a general rule, a ‘count’ is used to charge the offense itself
and a ‘paragraph’ is that portion of a count which alleges the method of committing the offense.”).
        6
          Each of the paragraphs also contained an allegation that Witt was a family member with
whom appellant had had a dating relationship, see Tex. Fam. Code §§ 71.0021(b) (defining “dating
relationship” as “a relationship between individuals who have or have had a continuing relationship
of a romantic or intimate nature”), .003 (defining “family” to include “individuals who are former
spouses of each other [or] individuals who are the parents of the same child”), as well as a deadly
weapon allegation, see Tex. Code Crim. Proc. art. 42.12, § 3g(a)(2) (providing for affirmative
finding upon showing that defendant used or exhibited deadly weapon during commission of felony
or immediate flight therefrom), which we omit here because they are not relevant to the complaint
appellant raises in this point of error.

                                                   11
See Tex. Penal Code § 30.02(a)(1) (providing that offense of burglary is committed by entering

habitation without consent of owner with intent to commit felony, theft, or assault), (3) (providing

that offense of burglary is committed by entering habitation and then committing or attempting to

commit felony, theft, or assault).

               At trial, appellant asked for language to be included in the jury charge instructing the

jurors that in order to convict appellant of burglary of a habitation, they must unanimously agree as

to how she committed the burglary. Concluding that the jury did not have to unanimously agree on

the manner and means by which appellant committed burglary of a habitation, the trial court denied

appellant’s requested instruction.

               We review alleged jury charge error in two steps: first, we determine whether error

exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.

Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743–44

(Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the jury

charge error was preserved in the trial court. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (op. on reh’g) (setting forth analysis for determining whether jury charge error requires

reversal). If the jury charge error has been properly preserved by an objection or request for

instruction, reversal is required if the appellant has suffered “some harm” from the error. Vega

v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); see Barrios v. State, 283 S.W.3d 348, 350

(Tex. Crim. App. 2009) (“If there was error and appellant objected to the error at trial, reversal is

required if the error ‘is calculated to injure the rights of the defendant,’ which we have defined to

mean that there is ‘some harm.’”).



                                                 12
               Texas law requires a unanimous jury verdict in all criminal cases. See Tex. Code

Crim. Proc. art. 36.29(a); Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). More

specifically, “the jury must be unanimous in finding every constituent element of the charged offense

in all criminal cases.” Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014) (citing Pizzo

v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007)). Unanimity in this context means that each

and every juror agrees that the defendant committed the same, single, specific criminal act. Ngo,

175 S.W.3d at 745; see Cosio, 353 S.W.3d at 771 (unanimous verdict “means that the jury must

‘agree upon a single and discrete incident that would constitute the commission of the offense

alleged’”) (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). “[T]he jury must

be instructed that it must unanimously agree on one incident of criminal conduct (or unit of

prosecution), based on the evidence, that meets all of the essential elements of the single charged

offense beyond a reasonable doubt.” Saenz v. State, 451 S.W.3d 388, 390 (Tex. Crim. App. 2014)

(quoting Cosio, 353 S.W.3d at 776).

               However, the requirement of jury unanimity is not violated by a jury charge that

presents the jury with the option of choosing among various alternative manner and means of

committing the same statutorily defined offense. Jourdan, 428 S.W.3d at 94; Pizzo, 235 S.W.3d at

715. “A jury must unanimously agree about the occurrence of a single criminal offense, but

they need not be unanimous about the specific manner and means of how that offense was

committed.” Young v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011); see Landrian v. State,

268 S.W.3d 532, 535 (Tex. Crim. App. 2008) (“The jury must agree that the defendant committed

one specific crime. That does not mean, however, that the jury must unanimously find that the



                                                 13
defendant committed that crime in one specific way or even with one specific act.” (internal citations

omitted)); Miranda v. State, 391 S.W.3d 302, 310 (Tex. App.—Austin 2012, pet. ref’d) (“Jury

unanimity is required with respect to all essential elements of the offense at issue; however, the jury

need not unanimously agree on the specific method of committing a single offense.”).

                “‘[M]anner or means’ describes how the defendant committed the specific statutory

criminal act.” Ngo, 175 S.W.3d at 745. The State is permitted to plead alternate manner and means

of committing the same offense. Landrian, 268 S.W.3d at 535–36. “‘Therefore, different modes

of commission may be presented in a jury instruction in the disjunctive when the charging

instrument, in a single count, alleged the different means in the conjunctive.’” Jourdan, 428 S.W.3d

at 94 (quoting Pizzo, 235 S.W.3d at 715). “Determining whether a statute creates multiple offenses

(which requires unanimity as to one offense) or merely a single offense that may be committed by

one of multiple manner and means (which do not require unanimity) ‘is a function of legislative

intent, and in examining statutory language for legislative intent, we inquire into the ‘gravamen’ of

the offense.’” Irielle v. State, 441 S.W.3d 868, 874 (Tex. App.—Houston [14th Dist.] 2014, no pet.)

(quoting Jourdan, 428 S.W.3d at 95–96).

                The gravamen of a burglary offense is the unauthorized entry with the requisite

mental state or further requisite act. See DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App.

1988) (“The gravamen of the offense of burglary clearly remains entry of a building or habitation

without the effective consent of the owner, accompanied by either the required mental state, under

§§ 30.02(a)(1) and (2) . . . or the further requisite acts or omissions, under § 30.02(a)(3).”); see also

Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006) (unlawful entry is gravamen of



                                                   14
burglary because offense is complete once unlawful entry is made). Burglary of a habitation may

be committed three different ways. See Tex. Penal Code § 30.02(a)(1)–(3) (offense of burglary is

committed by (1) entering habitation with intent to commit felony, theft, or assault; (2) remaining

concealed in habitation with intent to commit felony, theft, or assault; or (3) entering habitation and

then committing or attempting to commit felony, theft, or assault); see also Shaw v. State,

557 S.W.2d 305, 306 (Tex. Crim. App. 1977), overruled in part on other grounds by Almanza,

686 S.W.2d at 174. These different ways are not separate burglary offenses; they are alternative

means of committing the single offense of burglary. Washington v. State, No. 03-11-00428-CR,

2014 WL 3893060, at *3–4 (Tex. App.—Austin Aug. 6, 2014, pet. ref’d) (mem. op., not designated

for publication); Martinez v. State, 269 S.W.3d 777, 783 (Tex. App.—Austin 2008, no pet.).

               Tracking the indictment in this case, the application paragraphs of the jury charge

concerning the burglary offense instructed the jurors that they could convict appellant of burglary

of a habitation if they found that she entered the home of Jason Witt, a family member, without his

effective consent:


       •       with intent to commit the felony offense of aggravated assault;

       •       and attempted to commit or committed the felony of aggravated assault;

       •       with intent to commit the felony offense of kidnapping;

       •       and attempted to commit or committed the felony of kidnapping.


The charge, in other words, submitted the four burglary allegations, relating to the different sections

of the burglary of a habitation statute, disjunctively. Thus, the jury charge set forth the single,



                                                  15
specific statutory offense of burglary of a habitation and included four alternative manner and means

of committing that offense. Alternate manner and means of committing the same offense may be

submitted to the jury without violating the right to a unanimous jury verdict. See Martinez v. State,

129 S.W.3d 101, 103 (Tex. Crim. App. 2004) (“The unanimity requirement is not violated by

instructing the jury on alternate theories of committing the same offense[.]”).

                At trial, appellant asserted that the failure to include the jury unanimity instruction

denied her the opportunity to have a unanimous verdict on the burglary of a habitation, which was

“a violation of [her] rights under the U.S. Constitution and the Texas Constitution due course of

law.” In this case, however, whether appellant entered Witt’s home with the intent to commit

aggravated assault or kidnapping, or entered Witt’s home and committed (or attempted to commit)

aggravated assault or kidnapping, only a single unlawful entry into the home was committed.

Therefore, the jury charge instructing the jury to find appellant guilty if it found either that she had

unlawfully entered the victim’s habitation with intent to commit a felony or that she had unlawfully

entered the victim’s habitation and then committed or attempted to commit a felony did not deprive

appellant of her constitutional right to a unanimous verdict. The unauthorized entry with intent to

commit a felony or the unauthorized entry and the commission (or attempted commission) of a

felony were simply alternative methods of committing the same burglary offense. Hence, the trial

court did not err by denying appellant’s requested jury unanimity instruction as no such unanimity

was required.

                On appeal, appellant maintains that the failure to instruct the jury that its verdict

required unanimous agreement as to the manner and means of committing the burglary of habitation



                                                  16
possibly subjected her to double jeopardy because the predicate offense in two of the paragraphs of

the burglary charge (the aggravated assault) was also charged in a separate indictment.7 See Langs

v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006) (defendant may not be punished for both

underlying felony and burglary if burglary allegation is that defendant entered home without consent

of owner and then committed underlying felony within home; conversely, substantive felony and

burglary by entering home without consent of owner and with felonious intent to commit that

substantive felony are two distinct offenses not constituting double jeopardy violation). Although

acknowledging that the subsections of the burglary statute are merely alternative manner and means

of committing burglary, appellant argues that “under the circumstances” of this case, the lack of

unanimity between the statutory subsections, “opened the possibility” that the jury’s general verdict

resulted in a double jeopardy violation.

               However, even had the trial court included the requested unanimity instruction, the

double jeopardy “possibility” would not have been resolved. The verdict form for the burglary

charge required the jury to return a general verdict: “We, the Jury, find the defendant, [appellant],

(guilty or not guilty) of the offense of Burglary of a Habitation.” Even had the court included


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          Initially, we note that the record does not reflect that appellant raised her double jeopardy
concerns at trial—during the charge conference when requesting the unanimity instruction on the
burglary offense or at any other time during trial. See Tex. R. App. P. 33.1(a)(1)(A) (to preserve
error, party must not only present timely request or objection to trial court but must also state
grounds for request or objection “with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context”); Buchanan v. State,
207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (general or imprecise objection suffices to preserve
error “only if the legal basis for the objection is obvious to the court and to opposing counsel”); see
also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014), cert. denied, 135 S. Ct. 1158
(2015) (point of error on appeal must comport with objection made at trial). Arguably, appellant’s
complaint on appeal was not properly preserved for appellate review.

                                                  17
appellant’s requested unanimity instruction and required the jury to be unanimous as to the manner

and means by which appellant committed the burglary, there would be no way of knowing from the

general verdict which manner and means the jury was unanimous about. There is no requirement

that the jury designate which of the alternate manner and means of committing the specific offense

the jurors found to have been proven. Thus, appellant’s requested jury unanimity instruction did not

address, and certainly did not eliminate, the double jeopardy concern appellant now raises for the

first time on appeal. Even with the requested instruction, the “possibility” that the jury’s general

verdict resulted in a double jeopardy violation still existed. With or without the requested

instruction, appellant was in the same position regarding a potential double jeopardy violation.

               For that reason, even assuming the denial of the requested instruction was error,

which we conclude it was not, we reject appellant’s claim that she suffered “some harm” because

the trial court denied her jury unanimity instruction. Once again, if jury charge error has been

properly preserved by an objection or request for instruction, as in this case, reversal is required if

the appellant has suffered “some harm” from the error. Vega, 394 S.W.3d at 519. “This means that

the trial record must demonstrate that there is some actual harm and not just a theoretical complaint.”

Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim. App. 2013). Appellant’s contention that she was

harmed by the omission of the requested jury unanimity instruction is based solely on the

hypothetical possibility of a double jeopardy violation—a wholly theoretical complaint. Because

the jury charge submitted four alternative burglary theories, only one of which posed a possible

double jeopardy violation, the record fails to demonstrate actual harm. See Langs, 183 S.W.3d at

687 (“[W]hen separate theories for an offense are issued to the jury disjunctively, a double jeopardy



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violation is not clearly apparent on the face of the record if one of the theories charged would not

constitute a double jeopardy violation and there is sufficient evidence to support that valid theory.

The fact that the jury’s verdict could have relied on a theory that would violate the Double Jeopardy

Clause, is not sufficient to show a constitutional violation ‘clearly apparent on the face of the

record.’”); Wilson v. State, No. 05-11-01195-CR, 2012 WL 5504025, at *3 (Tex. App.—Dallas

Nov. 14, 2012, pet. ref’d) (not designated for publication) (“When both theories of burglary

described above are submitted to the jury disjunctively, a double jeopardy violation is not clearly

apparent on the face of the record if there is sufficient evidence to support the theory that would not

constitute a double jeopardy violation.”).

                We overrule appellant’s second point of error.


                                    Clerical Error in Judgment

                On review of the record, we observe that the written judgment of conviction for the

second count of family violence aggravated assault in this case (Count III in appeal number

03-13-00390-CR) contains a clerical error. The judgment states that the “Statute for Offense” is

“22.02(a)(1) Penal Code.” The statute for the family violence aggravated assault offense as alleged

in Count III of the indictment in this case, however, is section 22.02(a)(2) of the Penal Code. This

Court has authority to modify incorrect judgments when the necessary information is available to

do so. See Tex. R. App. P. 46.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993).

Accordingly, we modify the incorrect judgment of conviction for the second count of family violence

aggravated assault (Count III in appeal number 03-13-00390-CR) to reflect the correct Penal

Code section.

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                                       CONCLUSION

              Having overruled appellant’s two points of error, we affirm the judgments of

conviction for the first count of family violence aggravated assault (Count I in appeal number

03-13-00390-CR), the aggravated kidnapping (appeal number 03-13-00391-CR), and the burglary

of a habitation (appeal number 03-13-00392-CR). To correct non-reversible clerical error in the

judgment of conviction for the second count of family violence aggravated assault (Count III in

appeal number 03-13-00390-CR), we modify that judgment as noted above and affirm that judgment

of conviction as so modified.



                                            __________________________________________
                                            Cindy Olson Bourland, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

03-13-00390-CR         Affirmed; Modified and, as Modified, Affirmed

03-13-00391-CR         Affirmed

03-13-00392-CR         Affirmed

Filed: July 30, 2015

Do Not Publish




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