                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-16-00540-CR

                                            Mark MEDEL,
                                              Appellant

                                                 v.

                                        The STATE of Texas,
                                              Appellee

                     From the 227th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2014CR8952A
                          Honorable Kevin M. O’Connell, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: February 28, 2018

AFFIRMED AS REFORMED

           Mark Medel was convicted by a jury of injury to a child causing bodily injury. Medel

presents three issues on appeal contending: (1) the trial court erred in failing to instruct the jury

that it could not return a verdict unless it unanimously agreed as to each separate offense in the

charge; (2) the trial court erred in failing to grant Medel’s motion to require the State to elect

between the indicted offense of injury to a child causing serious bodily injury and the lesser-

included offense of injury to a child causing bodily injury; and (3) the State’s argument regarding

unanimity confused, misled, and prejudiced the jury. We overrule Medel’s issues; however, we
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reform the judgment to accurately reflect the offense for which Medel was convicted and the

statute for that offense. We affirm the trial court’s judgment as reformed.

                                           BACKGROUND

       Medel was charged in a two count indictment with injury to a child causing serious bodily

injury and injury to a child causing serious bodily injury by omission. The State waived the second

count and proceeded to trial only on the first count.

       During trial, expert witnesses presented conflicting testimony with regard to whether the

child’s injuries rose to the level of serious bodily injury. Given the conflicting testimony, the State

requested the trial court include the lesser-included offense of injury to a child causing bodily

injury in the jury charge. The trial court granted the request, and the jury found Medel guilty of

the lesser-included offense. Medel appeals.

                                         JURY UNANIMITY
       In his first issue, Medel contends the trial court erred in failing to instruct the jury that it

could not return a verdict unless it unanimously agreed as to each separate offense in the charge.

In his brief, Medel asserts, “Appellant contends that when two separate result-oriented offenses

are listed in a jury charge and each offense alleges the same manner and means the Court’s charge

should contain specific rather than general unanimity instructions charging the jury that it must

reach a unanimous verdict as to each offense alleged.” Medal further argues the “inclusion of the

two easily confused Injury to a Child offenses in the jury’s charge necessitated a specific unanimity

instruction for each separate and distinct offense alleged.”

       In analyzing jury-charge issues, we must first determine whether error exists. Ngo v. State,

175 S.W.3d 738, 743 (Tex. Crim. App. 2005). “Then, if we find error, we analyze that error for

harm.” Id.



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       “[J]uror unanimity is required in felony cases by the Texas Constitution and in all criminal

trials by state statutes.” Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011). As a result,

the trial court “is obligated to submit a charge that does not allow for the possibility of a non-

unanimous verdict.” Cosio v. State, 353 S.W.3d 766, 776 (Tex. Crim. App. 2011).

       In this case, the jury charge instructed the jury as follows:

                                                IV.

               Now, if you believe from the evidence beyond a reasonable doubt that on
       or about the 4th Day of May, 2014, in Bexar County, Texas, the defendant, Mark
       Medel, did intentionally or knowingly cause serious bodily injury to [C.C.], a child
       who was fourteen (14) years of age or younger, by striking [C.C.] with the hand of
       Mark Medel, or striking [C.C.] with a broom, or striking [C.C.] with a belt, or
       striking [C.C.] with an object unknown to the grand jury, or striking [C.C.] against
       an object unknown to the grand jury, or burning [C.C.] with a lighter, or burning
       [C.C.] with an object unknown to the grand jury, or grabbing, squeezing, or twisting
       the genitals of [C.C.], then you will find the defendant guilty of injury to a child as
       charged in the indictment.
               If you do not so believe, or if you have a reasonable doubt thereof, or if you
       are unable to agree, you will next consider whether the defendant is guilty of the
       lesser included offense of injury to a child causing bodily injury.

                                                 V.

               Now, if you believe from the evidence beyond a reasonable doubt that on
       or about the 4th Day of May, 2014, in Bexar County, Texas, the defendant, Mark
       Medel, did intentionally or knowingly cause bodily injury to [C.C.], a child who
       was fourteen (14) years of age or younger, by striking [C.C.] with the hand of Mark
       Medel, or striking [C.C.] with a broom, or striking [C.C.] with a belt, or striking
       [C.C.] with an object unknown to the grand jury, or striking [C.C.] against an object
       unknown to the grand jury, or burning [C.C.] with a lighter, or burning [C.C.] with
       an object unknown to the grand jury, or grabbing, squeezing, or twisting the genitals
       of [C.C.], then you will find the defendant guilty of the lesser included offense of
       injury to a child causing bodily injury.
               If you do not so believe, or if you have a reasonable doubt thereof, you will
       find the defendant not guilty.

(emphasis added). The jury was also instructed as follows:

               After you have retired to your jury room, you should select one of your
       members as your “presiding juror.” It is his or her duty to preside at your
       deliberations, vote with you and, when you have unanimously agreed upon a
       verdict, to certify your verdict by signing the same as “presiding juror.”
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       We hold the trial court did not err in submitting the jury charge because it did “not allow

for the possibility of a non-unanimous verdict.” Cosio, 353 S.W.3d at 776. The jury was instructed

that it was required to unanimously agree upon a verdict. The jury also was instructed not to

consider the lesser-included offense unless the jury was unable to agree on whether Medel

committed the charged offense of injury to a child causing serious bodily injury. Accordingly, the

jury was instructed to consider the lesser-included offense only if it could not unanimously agree

on the charged offense, and, if the jury considered the lesser-included offense, it was instructed its

decision as to that offense had to be unanimous. Medel’s first issue is overruled.

                                     ELECTION BY THE STATE

       In his second issue, Medel contends the trial court erred in not requiring the State to elect

between the indicted offense of injury to a child causing serious bodily injury and the lesser-

included offense of injury to a child causing bodily injury. We disagree.

       When the evidence at trial shows that only one offense was committed, but the evidence

could prove either the charged offense or a lesser-included offense, the State must either: (1) elect

which offense upon which it will proceed; or (2) have the lesser-included offense submitted as an

alternative to the charged offense in the jury charge. Ochoa v. State, 982 S.W.2d 904, 908 (Tex.

Crim. App. 1998). Because the State chose to have the lesser-included offense of injury to a child

causing bodily injury submitted in the charge as an alternative to the charged offense of injury to

a child causing serious bodily injury, the State was not required to elect to proceed on only one

offense. Id. Therefore, Medel’s second issue is overruled.

                                         JURY ARGUMENT

       In his final issue, Medel contends a portion of the State’s argument at the close of the guilt-

innocence phase of trial “confused, mislead and prejudiced the jury into believing it could convict



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even if the jury was not unanimous as to each separate count in the charge.” Specifically, Medel

complains about the following portion of the State’s argument:

              Now in the charge there’s a specific sentence that goes through the different
       ways he was struck and the injuries that were caused. Ladies and gentlemen, you
       don’t have to agree to all of these different types. Specifically it says, or in the
       charge. That means you don’t have to agree. You could think it happened by a
       belt. You could think it happened by a broom. It specifically says an object
       unknown to the grand jury. Whatever blunt object as Doctor Lukifer described
       could have caused this injury and you believe it. That’s why you can — five of you
       could agree to one way another five and two more to another way. You still can
       find him guilty if you believe it beyond a reasonable doubt.

       First, we note Medel did not object to the jury argument, so his complaint is waived.

Hernandez v. State, No. PD-1389-16, 2018 WL 357612, at *3 (Tex. Crim. App. Jan. 10, 2018);

Orcasitas v. State, 511 S.W.3d 213, 220 (Tex. App.—San Antonio 2015, no pet.). Even if the

complaint had been preserved, however, we agree with the State that the argument was a correct

statement of the law. See Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006) (holding

unanimity regarding manner or means of committing offense not required where “focus of the

statute is the result of the defendant’s conduct (in this case, serious bodily injury to a child) and

not the possible combinations of conduct that cause the result”). Medel’s third issue is overruled.

                                  REFORMATION OF JUDGMENT

       In its brief, the State notes the judgment erroneously reflects the offense for which Medel

was convicted as “INJURY TO CHILD-SBI-INTENT/KNO.”                    We also note the judgment

erroneously reflects the statute for the offense is section 22.04(A)(1) of the Texas Penal Code.

       Texas Rule of Appellate Procedure 43.2(b) gives an appellate court the authority to modify

a trial court’s judgment and affirm it as modified. TEX. R. APP. P. 43.2(b). “Where [the appellate

court] has the necessary data and evidence before it for reformation, the judgment and sentence

may be reformed on appeal.” Knight v. State, 581 S.W.2d 692, 694 (Tex. Crim. App. 1979).

Accordingly, we reform the trial court’s judgment to reflect that Medel was convicted of the
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offense of injury to a child causing bodily injury under section 22.04(a)(3) of the Texas Penal

Code.

                                          CONCLUSION

        The trial court’s judgment is affirmed as reformed.

                                                 Karen Angelini, Justice

DO NOT PUBLISH




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