                                  NUMBER 13-08-00189-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


JESUS EDUARDO COSIO,                                                                         Appellant,

                                                     v.

THE STATE OF TEXAS,                                                                           Appellee.


                       On appeal from the 139th District Court
                             of Hidalgo County, Texas.


                     OPINION ON REHEARING EN BANC

                           Before the Court En Banc
                  Opinion on Rehearing En Banc by Justice Hill1

        Having reconsidered the issues presented in this appeal en banc, we withdraw our

opinion of August 27, 2009, and replace it with this opinion.

        1
        Retired Second Court of Appeals Justice John Hill assigned to this Court by the Chief Justice of the
Suprem e Court of Texas pursuant to the governm ent code. See T EX . G O V ’T C OD E A N N . § 74.003 (Vernon
2005).
       Appellant, Jesus E. Cosio, appeals his convictions by a jury for the offenses of

aggravated sexual assault of a child and indecency with a child by contact. See TEX .

PENAL CODE ANN . §§ 21.11, 22.011(a)(2) (Vernon Supp. 2009). The jury assessed his

punishment for two counts of aggravated sexual assault of a child at fifteen and twenty five

years’ confinement, respectively, in the Texas Department of Criminal Justice, Institutional

Division. Additionally, the jury assessed his punishment for two counts of indecency with

a child by contact at ten years’ confinement in the Texas Department of Criminal Justice,

Institutional Division, and a fine of $5,000, in each of the counts. The imposition of the

sentence of imprisonment or confinement for indecency with a child by contact was

suspended and Cosio placed on community supervision for ten years, with the fine to be

paid as one of the conditions for community supervision. All of the sentences are to run

concurrently.

       In seven issues, Cosio contends that: (1) the jury charge contains egregious error

because it allowed for convictions that were not unanimous (issue one); (2) his trial counsel

was ineffective in not ensuring that extraneous offense instructions were given to the jury,

by not preparing for punishment, in not calling a witness to testify, and in not objecting to

the reading back of the complainant’s testimony (issues two, four, five, and six); (3) the

evidence is legally and factually insufficient to support his convictions for indecency with

a child by contact (issue three); and (4) the trial court erred in not granting a new trial due

to a witness conversing with two jurors (issue seven). We reverse the judgment with

respect to one of the convictions for indecency with a child by contact and remand to the

trial court for the entry of a judgment of acquittal. We reverse the judgment with respect

to the remaining convictions and remand to the trial court for further proceedings.


                                              2
                              I. SUFFICIENCY OF THE EVIDENCE

       Cosio contends in issue three that the evidence is legally and factually insufficient

to support his convictions for indecency with a child by contact. In order to determine if the

evidence is legally sufficient, the appellate court reviews all of the evidence in the light

most favorable to the verdict and determines whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979). To determine if the evidence is factually sufficient, the appellate

court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414

(Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain

v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d

126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the

evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly

unjust or whether the verdict is against the great weight and preponderance of the

conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

       Each of the two counts of indecency with a child by contact, as submitted to the jury,

alleged that Cosio touched part of the complainant’s genitals. Susan Sherman, a pediatric

nurse practitioner with the Children’s Advocacy Center in Fort Myers, Florida, testified that

the complainant told her in an interview that, while she was in the shower, Cosio touched

her on her chest and in her private area. Sherman said that she did not expect to find

anything abnormal in her medical examination of the complainant because two or three

years had passed. She acknowledged that nothing abnormal “stuck out” at her.

       The complainant recalled that when she was about seven or eight, Cosio came in

while she was taking a shower and touched her on the breast, her private part, and “mostly

everywhere.” She acknowledged that she thought he was giving her a shower, although
                                        3
he had not ever given her a shower before, and she knew how to shower by herself.

       The complainant testified that about a week later, Cosio took her into her mother’s

room, where he touched her breasts, “mostly my whole body, like mostly everything.” She

stated that Cosio had her put his penis in her mouth, then put his penis in her vagina when

she was eight years old.

       The complainant testified that on another occasion, when she was nine or ten, she

and Cosio were in her mother’s room and he showed her pornographic movies, and

attempted to simulate the positions in the movie. On this occasion, Cosio put his penis

inside her vagina and touched her breasts.

       We hold that the evidence is legally and factually sufficient to support Cosio's

conviction of one count of indecency with a child by contact, involving the first incident

when the complainant was in the shower. Cosio contends that the evidence is insufficient

because the complainant made reference to her “private part,” without being more specific,

and because any sexual conduct that occurs in the course of an act of sexual penetration

is subsumed in the completed act. We hold that the complainant’s use of the term “private

part” was sufficient to convey to the jury that the touching occurred to part of her genitals.

See Williams v. State, 911 S.W.2d 788, 790 (Tex. App.–San Antonio 1995, no pet.) (op.

on reh’g). Cosio suggests that because the complainant was fourteen years of age at the

time she testified, and because her language usage indicates that she would have been

capable of a more precise description, that the evidence is insufficient. The Williams court

held that the evidence was sufficient because the language used, “private part,” sufficiently

communicated to the trier of fact the part of the body involved, not because the

complainant was too young to use more sophisticated language. Id. There was no act of

sexual penetration involved in the shower incident.
                                            4
       The only other evidence of Cosio touching the complainant’s genital area is in

connection with penetration by Cosio’s penis. Penile contact with mouth, genitals or anus

in the course of penile penetration is subsumed in the greater offense. Patterson v. State,

152 S.W.3d 88, 92 (Tex. Crim. App. 2004). The State urges that the evidence is sufficient

to show that Cosio touched part of the complainant’s genitals on the occasion in her

mother’s bedroom when, she said, he touched her breasts, “mostly my whole body, like

mostly everything.” We hold that this language is too imprecise for the trier of fact to

reasonably infer that Cosio touched her genital area on that occasion, apart from the

contact incident to penetration that the complainant also described. Consequently, the

evidence is legally insufficient to support one of the counts of indecency with a child by

contact. We overrule issue three in part and sustain issue three in part.

                                     II. CHARGE ERROR

       Cosio urges in issue one that the jury charges contained egregious error since they

allowed for convictions that were not unanimous. The trial court submitted four separate

charges to the jury: (1) two concerning allegations of indecency with a child by contact with

part of the complainant's genitals; and (2) two allegations of aggravated sexual assault of

a child, including one allegation of penetration by Cosio’s penis of the complainant’s

mouth, and one allegation of penetration by Cosio’s penis of the complainant’s vagina.

The jury was instructed that it must be unanimous in its verdict, but it received no

instruction that it must be unanimous as to any specific criminal act.

A.     Background

       The indictment contained four counts, many of which contained several paragraphs.

It alleged several instances of aggravated sexual assault of a child, including: (1) July 31,

2003, Cosio causing his sexual organ to penetrate the complainant’s mouth; (2) July 31,
                                          5
2004, causing his sexual organ to penetrate the complainant’s mouth; (3) July 31, 2003,

two separate incidents of causing his sexual organ to contact the complainant’s sexual

organ; and (4) July 31, 2003, causing his sexual organ to penetrate the complainant’s

sexual organ. Additionally, it alleged a few instances of indecency with a child by contact,

including: (1) July 31, 2003, Cosio touching part of the complainant’s genitals; (2) July 31,

2004, touching part of the complainant’s genitals; and (3) July 31, 2003, touching the

complainant’s breast.

       At trial, the State elected to proceed with only the following portions of the

indictment: (1) July 31, 2004, Cosio causing his sexual organ to penetrate the

complainant’s mouth (aggravated sexual assault of a child); (2) July 31, 2003, Cosio

causing his sexual organ to penetrate the complainant’s sexual organ (aggravated sexual

assault of a child); (3) July 31, 2004, Cosio touching part of the complainant’s genitals

(indecency with a child by contact); and (4) July 31, 2003, Cosio touching part of the

complainant’s genitals (indecency with a child by contact).

       The complainant testified as to four different occasions on which Cosio acted toward

her in an improper manner. As previously discussed, these included the following: (1)

when the complainant was seven or eight years old, Cosio touched her private part and her

breast while she was taking a shower. Given that the complainant was fourteen years of

age at the time of the trial in October, 2007, the shower incident would have occurred

sometime during the years 1999-2001; (2) about one week after the shower incident, while

Cosio and the complainant were in her mother’s room, Cosio touched her breast and,

according to the complainant, “mostly my whole body, like mostly everything.” On this

occasion, Cosio penetrated both the complainant’s mouth and her vagina with his penis.

This incident would also have occurred sometime during the years 1999-2001; (3) when
                                          6
the complainant was nine or ten years old, Cosio showed her pornographic movies. He

penetrated her vagina with his penis and touched her breasts. This would have occurred

sometime during the years 2001-2003; and (4) while Cosio and the complainant were on

the way to and from a fast food restaurant, Cosio penetrated the complainant’s mouth with

his penis. The complainant did not testify as to when this incident occurred.

       With respect to the allegation that on or about July 31, 2004, Cosio penetrated the

complainant’s mouth with his penis, the complainant testified as to two separate criminal

acts or instances that would support this allegation: (1) the week-after-the-shower incident,

which occurred sometime during the years 1999-2001; and (2) the fast food incident, the

time of which is unknown.

       With respect to the allegation that on or about July 31, 2003, Cosio caused his

sexual organ to penetrate the complainant’s sexual organ, the complainant testified as to

two separate criminal acts or instances that would support this allegation: (1) the

week-after-the-shower incident, which occurred sometime during the years 1999-2001; and

(2) the pornographic movie incident, which occurred sometime during the years 2001-2003.

       With regard to the allegations that on or about July 31, 2003, and July 31, 2004,

Cosio touched part of the complainant’s genitals, the complainant testified as to at least

three separate criminal acts or instances that would support these allegations: (1) the

shower incident, which occurred sometime between the years 1999-2001; (2) the

one-week-after-the-shower-incident, which also occurred sometime between the years

1999-2001; and (3) the pornographic-movie incident, which occurred sometime during the

years 2001-2003.

       Four separate charges were submitted to the jury, corresponding to each of the four

counts upon which the State elected to proceed at trial. As noted, the complainant testified
                                            7
as to more than one separate criminal act or incident that would support each of the four

allegations. Cosio made no objection to the charges at trial.

B.     Discussion

       We review alleged charge error by considering whether an error existed in the

charge and whether sufficient harm resulted from the error to require reversal. Ngo v.

State, 175 S.W.3d 738, 748 (Tex. Crim. App. 2005). We first consider whether there was

error in the charges with respect to indecency with a child by touching part of the

complainant’s genitals. As we have previously noted, the evidence supported one,

possibly two, instances of Cosio touching the complainant's genital area with his hand, and

more than one instance of his touching her genital area with his penis in the process of

penetration of her vagina. The charges involving indecency with a child by contact defined

“sexual contact” as:

       [A]ny touching by a person, including touching through clothing, of the anus,
       breast, or any part of the genitals of a child; or any touching of any part of the
       body of a child, including touching through clothing, with the anus, breast, or
       any part of the genitals of a person with the intent to arouse or gratify the
       sexual desire of any person.

TEX . PENAL CODE ANN . § 21.11(c).

       Two separate charges were submitted regarding indecency of a child by touching

part of the genitals of the complainant. The charges were not specific as to whether Cosio

allegedly touched part of the complainant’s genitals with his hand or his penis. The

evidence supports more than one instance of Cosio penetrating the complainant’s genitals

with his penis and one instance of Cosio touching the complainant’s genitals with his hand.

The State, as previously noted, contends that there were two such instances of Cosio

touching the complainant’s genitals with his hand. In neither of the two charges relating

to indecency of a child was the jury instructed that its verdict must be unanimous as to any
                                              8
particular specific criminal act or instance of touching part of the complainant’s genitals.

Inasmuch as there is evidence of more instances or specific criminal acts that would

constitute indecency of a child than there were charges of that offense submitted to the

jury, and the jury was not instructed that it must be unanimous as to any specific criminal

act constituting the commission of the offense, the charges were erroneous because they

allowed for a non-unanimous verdict. See Ngo, 175 S.W.3d at 748.

       Inasmuch as there was evidence of more than one specific act of Cosio penetrating

the complainant’s mouth with his penis and evidence of more than one specific act of

Cosio penetrating the complainant’s vagina with his penis, the charges as to aggravated

sexual assault of a child are also erroneous because they allowed for a non-unanimous

verdict concerning what specific criminal act the defendant committed. Id.

       The dissent suggests that the charge was not erroneous because there were

offenses committed on four occasions and four separate charges were submitted that

alleged two separate dates, July 31, 2003, and July 31, 2004. However, given when these

acts are supposed to have occurred, there was no way for the jury to limit its consideration

of each of the four charges to one particular criminal act, where, as here, there was more

than one particular criminal act that could have supported each of the four charges. The

dissent’s suggestion that a general instruction as to unanimity, without an instruction that

the jury must be unanimous as to one particular criminal act, is sufficient in a case where

there is evidence of more than one specific criminal act to support each of the charges

submitted, appears to be in conflict with Ngo. Ngo, 175 S.W.2d at 744-45.

       In arguing that the general language is sufficient, the dissent relies upon Kitchens

v. State, 823 S.W.2d 256, 258 n.2 (Tex. Crim. App. 1991) and this Court’s unpublished

opinion in Rodriguez v. State, No. 13-05-522-CR, 2006 Tex. App. LEXIS 7253, at *7 (Tex.
                                            9
App.–Corpus Christi Aug. 17, 2006, no pet.) (not designated for publication). We find both

to be distinguishable. Kitchens was a capital murder case, involving only one murder.

Kitchens, 823 S.W.2d at 257 n.1. Kitchens contended that there was error in the trial

court’s instructions because some of the jurors might have found him guilty of murder in

the course of aggravated sexual assault while others may have found him guilty of murder

in the course of robbery. Id. Essentially, the court found that the jury was not required to

be unanimous as to the issue of which other offense the murder was committed in the

course of. Id. at 258. As previously noted, Rodriguez is distinguishable because there is

no suggestion in that case that there was evidence of more specific criminal acts or

incidents than there were counts submitted in the court’s charge.

       The State suggests that Cosio’s point is not valid because it did not make an

election as to which act it was relying upon and was not required to in the absence of a

request by the appellant. Some opinions, including one from this court, have suggested

that the failure to request that the State make an election among acts or an election among

offenses waives an issue of jury charge error on appeal. These include the cases of Lopez

v. State, No. 13-05-759-CR, 2006 Tex. App. LEXIS 7510, at **6-7 (Tex. App.–Corpus

Christi Aug. 24, 2006, no pet.) (mem. op., not designated for publication), and Lee v. State,

No. 2-01-433-CR, 2003 Tex. App. LEXIS 4043, at **2-5 (Tex. App.–Fort Worth May 8,

2003, no pet.) (mem. op., not designated for publication). In Lee, the court held that the

appellant waived the issue he presented regarding jury charge error based on a lack of jury

unanimity because he had not requested that the State make an election as to which acts

it was relying upon for conviction. Lee, 2003 Tex. App. LEXIS 4043, at *4. The court relied

on the cases of Scoggan v. State, 799 S.W.2d 679, 680 n.3 (Tex. Crim. App. 1990);

O’Neal v. State, 746 S.W.2d 769, 770 n.3 (Tex. Crim. App. 1988); Crawford v. State, 696
                                          10
S.W.2d 903, 906 (Tex. Crim. App. 1985); and Mayo v. State, 17 S.W.3d 291, 298 (Tex.

App.–Fort Worth 2000, pet. ref’d). We find that none of these cases supports the Lee

court’s holding regarding waiver because none of the cases cited involved charge error,

such as was presented both in Lee and in this case. Lopez presents the same four

opinions in support of its holding that an appellant waives the issue of jury charge error

based on a lack of jury unanimity where he or she has not requested at trial that the State

make an election of the offense upon which it relies for conviction. Lopez, 2006 Tex. App.

LEXIS 7510 at **6-7. We also note that the issue presented by the appellant in Lopez, the

trial court’s failure to require the State to elect a specific act it would rely on for the

conviction, was not presented as jury charge error. Id. at *6. Consequently, the language

stating that any charge error was waived by the appellant’s failure to request the State to

make an election at trial of the specific offense upon which it relies is dicta which is

unsupported by the authorities upon which the courts relied. We also note that Lee fails

to mention Almanza, even though Lee appears to be in conflict with the principle set forth

in Almanza that an appellate court does not consider preservation of jury charge error on

appeal, except for determining the proper standard for harm. See Almanza, 686 S.W.2d

157, 171-72. Lopez fails to mention either Almanza or Ngo, even though it appears to be

in conflict with both with respect to this issue. We decline to follow Lee, and we overrule

Lopez to the extent that it suggests that the failure to request the State to make an election

waives jury charge error on appeal based on a lack of jury unanimity.

       In an unpublished opinion, Rodriguez v. State, No. 13-05-522-CR, 2006 Tex. App.

LEXIS 7253, at **4-8 (Tex. App.–Corpus Christi Aug. 17, 2006, no pet.) (mem. op., not

designated for publication), this Court held that there was no error in the jury charge where


                                             11
the jury charges that were submitted with respect to two counts were not submitted

disjunctively. Id. As in Rodriguez, the jury charges as to each of four counts in this case

were not submitted in the disjunctive. However, in this case, each count that was

submitted was supported by evidence of more than one specific incident. Consequently,

under the charges that were given, some of the jurors could have determined that Cosio

was guilty because he committed the offense on one occasion, while others may have

concluded that he committed the offense on another occasion. In Rodriguez, there is no

suggestion that there was evidence of more specific criminal acts or incidents than there

were counts submitted in the court's charge. Id.

       We believe that this distinction may also be applicable with respect to the case of

Bottenfield v. State, 77 S.W.3d 349, 359 (Tex. App.–Fort Worth 2002, pet. ref’d), in which

the court held that the charge did not allow the jury to convict the defendant on less than

a unanimous verdict where there were two separate counts with two separate and distinct

offenses and the jury was not charged in the disjunctive. Id. Given that the charges that

were given are not clearly articulated in Bottenfield, it is possible that there were in that

case more than one specific criminal act or incident in support of each count submitted to

the jury. If that is the case, we would decline to follow Bottenfield because it precedes Ngo

and is in conflict with the principles set forth therein.

       The dissent argues that Cosio’s issue on appeal, that the jury charges contained

egregious error since they allowed for convictions that were not unanimous, is not an issue

of charge error. We agree with the dissent’s assertion that it is the substance of the issue

presented, not its title, that determines whether Cosio has presented jury charge error. In

his discussion of the issue in question, Cosio, while referring to unpreserved issues

regarding the State’s election at trial, also argued that the jury charges did not inform the
                                               12
jury on the constitutional necessity of unanimously finding one specific incident proven

beyond a reasonable doubt in order to reach a conviction. We conclude that the issue

presented was at least in part an issue of jury charge error.

       In suggesting that Cosio failed to preserve error as to his jury charge error, the

dissent relies upon the opinions of O'Neal v. State, 746 S.W.2d at 770 n.3; Pedersen v.

State, 237 S.W.3d 882, 884 (Tex. App.–Texarkana 2007, pet. ref’d); and Molina v. State,

No. 05-05-05199-CR, 2006 Tex. App. LEXIS 9670, at *2 (Tex. App.–Dallas Nov. 8, 2006,

pet. ref’d) (not designated for publication). All of these cases are distinguishable from this

case because they all involved unpreserved complaints regarding the State not being

required to make an election at trial; none involved an issue of jury charge error. The

dissent would be correct in arguing that error was not preserved if Cosio’s issue was that

the trial court erred in not requiring an election or that the trial court’s failure to require an

election abridged his right to a unanimous jury verdict. However, as we have previously

noted, Cosio also presented an issue of jury charge error, that the trial court’s charges

failed to instruct the jury that in reaching its verdict it must be unanimous as to a specific

criminal act. We note again the holding in Ngo that even where the State has not been

compelled to make an election, the jury must still reach a unanimous verdict on which

single, specific criminal act the defendant committed. Ngo, 175 S.W.3d at 748.

       The dissent suggests that the majority has chosen to review all complaints regarding

jury unanimity as charge error and this conflicts with the O’Neal line of cases. We first note

that we are only reviewing the complaint presented in this case, which, as we have noted,

is at least in part based upon charge error. This is not in conflict at all with the O’Neal line

of cases because, as we have noted, those cases do not involve appellate complaints of

jury charge error.
                                               13
       Preservation of charge error does not become an issue until we assess harm. Ngo,

175 S.W.3d at 743. The degree of harm necessary for reversal depends on whether the

appellant preserved the error by objection. Id. Jury charge error requires reversal when

the defendant has properly objected to the charge and we find “some harm” to his rights.

Id.; Almanza v. State, 686 S.W.2d at 171 (Tex. Crim. App.1985). When the defendant fails

to object or states that he has no objection to the charge, we will not reverse for jury charge

error unless the record shows “egregious harm” to the defendant. Ngo, 175 S.W.3d at

743-44; Almanza, 686 S.W.2d at 171-72.

       Cosio argues that he preserved error because the election that he requested at trial

was an election among acts, whereas the State made an election among offenses.

However, after the State made an election among offenses, Cosio made no further

objection. In any event, Cosio made no objection to the court's charges on the basis that

they allowed for convictions that were not unanimous. Because Cosio failed to object to

the court’s charges, we will not reverse for jury charge error unless the record shows

“egregious harm.” Errors that result in egregious harm are those that affect the very basis

of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory.

Ngo, 175 S.W.2d at 750. In order to determine whether the error was so egregious that

the defendant was denied a fair trial, we should examine the entire jury charge, the state

of the evidence, the arguments of counsel, and any other relevant information in the

record. Almanza, 686 S.W.2d at 171.

       In all of the jury charges in this case, the jury was instructed that it must be

unanimous in its verdict, but it was not instructed that it must be unanimous as to a specific

criminal act. As we have previously noted, there was evidence of several specific criminal

acts offered at trial, including evidence of more than one specific criminal act for each
                                             14
offense that was included in the jury charges. The final arguments neither suggested that

the jury must be unanimous as to a specific criminal act, nor suggested that the jury need

not be unanimous as to a specific criminal act. During the jury deliberations, the jury asked

if they needed a unanimous verdict. Without objection, the trial court instructed the jury,

“Verdicts must be unanimous. Please refer to the Court’s Charge for further instructions.”

We hold that the charge error was egregious because it deprived Cosio of a valuable right,

his right to a unanimous jury verdict. See Stuhler v. State, 218 S.W.3d 706, 719 (Tex.

Crim. App. 2007); see also Alberts v. State, No. 06-09-00058-CR, 2009 Tex. App. LEXIS

9430, at **11-19 (Tex. App.–Texarkana Dec. 11, 2009, no pet.) (mem. op., not designated

for publication); Soto v. State, 267 S.W.3d 327, 340 (Tex. App.–Corpus Christi 2008, no

pet.)

        The State, on submission of this case en banc, has referred us to several court of

appeals opinions in which the court found that such an error was not egregious. These

cases include: Ruiz v. State, 272 S.W.3d 819, 823 27 (Tex. App.–Austin 2008, no pet.);

De Los Santos v. State, 219 S.W.3d 71, 75 78 (Tex. App.–San Antonio 2006, no pet.);

Martinez v. State, 212 S.W.3d 411, 415-20 (Tex. App.–Austin 2006, pet. ref’d); Martinez

v. State, 190 S.W.3d 254, 261-62 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d); Villareal

v. State, No. 03-05-00846-CR, 2007 Tex. App. LEXIS 9503, at **9-13 (Tex. App.–Austin

Dec. 5, 2007, no pet.) (mem. op., not designated for publication); and Warner v. State,

Nos. 03-04-00203-CR & 03-04-00270-CR, 2005 Tex. App. LEXIS 7790, at **15-21 (Tex.

App.–Austin Sept. 22, 2005) (mem. op., not designated for publication), rev’d on other

grounds, 245 S.W.3d 458 (Tex. Crim. App. 2008). In Martinez, the First District Court of

Appeals found that such an error was not egregious even though the State misrepresented

to the jury in voir dire that it need not be unanimous, where the misstatement was not
                                             15
repeated and the trial court had stated during voir dire, “You all have to agree for there to

be a verdict. . . . You all have to be in agreement.” Martinez, 190 S.W.3d at 260-61. In the

other cases cited by the State, it seemed important to the court that in each of them no one

affirmatively told the jury that it need not be unanimous as to a specific criminal act. See

Ruiz, 272 S.W.3d at 825; De Los Santos, 219 S.W.3d at 78-79; Martinez, 212 S.W.3d at

421; see also Villareal, 2007 Tex. App. LEXIS 9503, at *11. The opinions also discuss that

the theory of the defense was not that the abuse did not occur, but that the defendant did

not do it; that the defendant had not urged that he had committed some, but not all, of the

alleged acts; or that the defendant did not differentiate between the different acts alleged.

See Ruiz, 272 S.W.3d at 826 (noting that the defendant did not argue that he was guilty

of only some of the allegations; his theory was that he did not commit any of the alleged

conduct); De Los Santos, 219 S.W.3d at 79 (stating that the defendant did not contest that

complainants had been sexually abused; rather, his defensive theory was that he was not

the abuser; and further stating that the defendant did not assert that he was guilty of only

some of the alleged acts, nor did he attempt to differentiate between different acts);

Martinez, 212 S.W.3d at 421 (providing that the defendant did not argue that he was guilty

of some of the acts alleged, but not others; his defense was that he did not commit any of

the alleged conduct; he did not differentiate between separate acts; and the jury had an

all or nothing decision-either defendant was guilty or was not guilty.); Martinez, 190 S.W.3d

at 261 (stating that the defendant impugned the veracity of the complainant, questioned

physical evidence, and did not differentiate among various alleged acts); Villareal, 2007

Tex. App. LEXIS 9503, at **12-13 (noting that where defendant's defensive strategy was

to undermine the complainant’s credibility, there was nothing to suggest that the jury, which

unanimously found defendant guilty of one count, would harbor a reasonable doubt as to
                                          16
the other charges); Warner, 2005 Tex. App. LEXIS 7790, at *21 (providing that defendant

contended that inconsistencies in the record could not be reconciled and that “it never

happened” and holding that it is evident that the jury simply did not believe the defense

case).

         As in most of these other cases, no one in this case ever told the jury that it need

not be unanimous as to a specific criminal act. However, the lack of an affirmative

misrepresentation that the jury does not need to be unanimous does not preclude a charge

error from being egregious where, as here, the jury charge error deprives the appellant of

the valuable right to a unanimous jury verdict. Stuhler, 218 S.W.3d at 719 20.

         In final argument, when discussing the facts of the case, Cosio’s counsel raised

questions as to the credibility of the complainant’s testimony and as to whether the

evidence was adequate to show Cosio’s guilt of the charges beyond a reasonable doubt.

He discussed each of the occasions of improper conduct concerning which the

complainant testified, but he did not discuss in detail the individual acts involved. While

the State’s attorney mentioned the details of some of the incidents about which the

complainant had testified, he said nothing to indicate he was relying on only one specific

incident per alleged act. The holdings of the courts which have held charge error such as

that in this case not to be egregious, apparently because of their belief that the defendant

in each case had not actually been denied a unanimous verdict, appear to be based on the

idea that, in such cases, the jury had a choice of either acquitting a defendant of all

charges or convicting him of all the charges. The inference is that because the jury found

the complainant credible when it unanimously found that the defendant committed one of

the acts testified to by the complainant, though not necessarily the same act, it reasonably

follows that the jury unanimously found that the defendant committed all of the acts
                                         17
testified to by the complainant. This assumption is not reasonable. A juror could believe

the complainant in part and not believe the complainant in part. Cosio had the valuable

right, with respect to each of the four charges submitted, to require, in order to support a

conviction, that the jury unanimously find that he committed a single criminal act meeting

the allegations of the indictment. Where, as here, there is more than one accusation by

the complainant that meets the allegations of the indictment, it does not follow that if the

jury unanimously believed that one of the complainant's accusations is true, although not

necessarily the same one, it unanimously believed that all of the complainant’s accusations

are true, so that the defendant was not actually deprived of the right to a unanimous

verdict. Given the entire state of the record, we are unable to determine that the jury

unanimously found that Cosio was guilty of any single criminal act, as required for a

conviction. Consequently, we conclude that the jury charge error in this case deprived

Cosio of his valuable right to a unanimous jury verdict.

       In Clear v. State, we held that to conclude that such a charge was not egregious

because the jury would surely have found the appellant guilty of all the offenses, if it had

been given the opportunity, would put us in the place of the jurors and would deprive the

appellant of his right to a guilty finding by a unanimous jury. Clear v. State, 76 S.W.3d 623,

624 (Tex. App.–Corpus Christi 2002, no pet.). Clear is distinguishable from this case

because in that case the State erroneously argued that the jury need not be unanimous.

Id. at 623-24. However, despite the lack of such an argument in this case, we still have no

way by which to determine that the jury actually found, unanimously, that Cosio was guilty

of any one specific criminal act.

       In its discussion as to whether Cosio suffered egregious harm, the dissent is correct

that there are some things, such as preliminary factual issues, about which the jury need
                                           18
not be unanimous. However, as noted in Ngo, the jury must be unanimous as to which

single, specific criminal act the defendant committed. Ngo, 175 S.W.3d at 748.

       We do not agree with the dissent’s suggestion that merely requiring an instruction

to the jury informing them of this requirement would make the prosecution of ongoing sex

crimes involving children prohibitively difficult. We also note that, since the opinon in Ngo,

the legislature has adopted section 21.02 of the Texas Penal Code. See TEX . PENAL CODE

ANN . § 21.02 (Vernon Supp. 2009). Section 21.02 provides that a person commits an

offense if, during a period that is 30 or more days in duration, a person commits two or

more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed

against one or more victims, where, at the time of the commission of each of the acts of

sexual abuse, the actor is 17 years of age or older and the victim is a child younger than

14 years of age. Id. § 21.02(b). Under that section, members of the jury are not required

to unanimously agree on which specific acts of sexual abuse were committed by the

defendant, or the exact date when the acts were committed, but must only agree

unanimously that the defendant, during a period that is 30 or more days in duration,

committed two or more acts of sexual abuse. Id. § 21.02(d). It would appear that this

statute would not require, in a case such as the one at bar, an instruction that the jury be

unanimous as to any specific criminal act.

       The dissent suggests that because there were four instances of misconduct and

four charges, the jury would not have been confused as to which counts corresponded to

which evidence. However, we have pointed out in this opinion that although there were

four specific occasions of misconduct, evidence was presented that Cosio had committed

more than one criminal act in support of each of the four charges submitted. We do not

conclude, as does the dissent, that the four charges submitted were each referable to only
                                             19
one specific criminal act. Reviewing the record as required by Almanza, as noted in the

opinion, we have concluded that the error was egregious because, in view of there being

more than one criminal act to support each of the four charges, in view of the fact that one

cannot determine that a submitted charge related to only one single criminal act, and in

view of the charges’ failure to inform the jury that it must be unanimous as to a specific

criminal act, Cosio was deprived of a valuable right, his right to a unanimous jury verdict.

We therefore sustain issue one. In view of our determination of this issue, we need not

consider the remaining issues presented by Cosio. See TEX . R. APP. P. 47.1.

                                     III. CONCLUSION

       We reverse the judgment with respect to one of the convictions for indecency with

a child by contact and remand for the entry of a judgment of acquittal. We reverse the

judgment with respect to the remaining convictions and remand to the trial court for further

proceedings.

                                                 JOHN G. HILL
                                                 Justice


Dissenting/Concurring Opinion by
Justice Dori Contreras Garza.

Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
23rd day of August, 2010.




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