Pizzo v. State , 2007 Tex. Crim. App. LEXIS 1232 ( 2007 )

OPINION

KEASLER, J.,

delivered the opinion for a unanimous Court.

Barry Louis Pizzo appealed his conviction for indecency with a child by contact, alleging that he was denied the right to a unanimous verdict because the indictment alleged breasts and genitals in the conjunctive and the instruction authorized a conviction if the jury found that he touched the breasts or genitals of the victim. Finding that the instruction properly charged different methods of commission disjunctively, the lower court affirmed.¹ We reverse and remand for a harm analysis.

Procedural Background

Pizzo was charged with, among other things, indecency with a child by contact in violation of Section 21.11(a)(1) of the Penal Code.² Counts II and III of the indictment alleged that Pizzo

on or about the 21st day of June, 2001 ... did then and there, with the intent to arouse and gratify the sexual desire of said Defendant, intentionally and knowingly engage in sexual contact by touching the GENITALS AND BREASTS, of [A.S.], a child younger than 17 years of age and not the spouse of the Defendant.

The evidence presented at trial showed that on two separate occasions — one in A.S.’s house and one in Pizzo’s trailer— Pizzo touched both the breasts and genitals of A.S. At the charge conference, asserting his right to a unanimous jury verdict, Pizzo objected to the proposed charge because the application paragraphs as to Counts II and III set out the form of sexual contact in the disjunctive. Pizzo stated:

the words ‘breast’ or ‘genitals’ in each, are charged obviously in the disjunctive. I’m requesting that they be charged in the conjunctive with an ‘and’ because otherwise, you don’t know if six jurors decided ‘genitals’ and six decided ‘breasts,’ and the possibility of a non-unanimous verdict because it’s charged in the same paragraph.

The trial judge overruled the objection and the charge submitted to the jury on Counts II and III read, in part, as follows:

if you find from the evidence, beyond a reasonable doubt, that on or about the 21st day of June, 2001 in Grimes County, Texas the defendant, BARRY LOUIS PIZZO, did then and there intentionally or knowingly engage in sexual contact with [A.S.] by touching the genitals or breasts of [A.S.], and [A.S.] was then and there under the age of seventeen years and not the spouse of the defendant, and that said act, if any, was committed with the intent on the part of the defendant to arouse or gratify the sexual desire of himself, then you will find the defendant guilty....

As to Count II, the jury found Pizzo guilty and sentenced him to nine years’ imprisonment and assessed a $7,000 fine. And, as to Count III, the jury found Pizzo not guilty.

Pizzo appealed his conviction under Count II and, in his sole point of error, he claimed that the trial judge erred “by overruling his objection to the court’s charge requesting that the terms ‘breast or genitals’ be charged in the conjunctive rather than in the disjunctive.”³ In a memorandum opinion affirming the judgment of the trial court, the Corpus Christi Court of Appeals held that Pizzo was not denied his right to a unanimous verdict because the trial judge “properly charged both means of sexual contact disjunctively.”⁴ The court concluded that our holding in Kitchens v. State⁵ was controlling.⁶ In doing so, the court relied on the following statements from our opinion in Kitchens:

although the indictment may allege the differing methods of committing the offense in the conjunctive, it is proper for the jury to be charged in the disjunctive. It is appropriate where the alternative theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted.⁷

In short, the court of appeals concluded that the touching of the breasts and genitals, which occurred during the same encounter, were not separate offenses but were only different means of committing the offense of indecency with a child by contact.⁸

Pizzo filed a petition for discretionary review. We granted review to determine whether the court of appeals erred by failing to apply our ruling in Francis v. State, where we held that it was error to charge in the conjunctive when the breast-touching and genital-touching incidents were two separate indecency by contact offenses because they occurred on different dates.⁹ Citing Francis, Pizzo’s ground for review asks: Did the court of appeals err “in holding that the trial court’s submission of a disjunctive in the court’s charge concerning two different offenses, both constituting the offense of indecency with a child, was not a denial of [his] right to a unanimous jury verdict?” We conclude that the court of appeals erred because the jury instruction improperly charged two separate offenses in the disjunctive and therefore permitted a conviction on less than a unanimous verdict.

Law and Analysis

“Under our state constitution, jury unanimity is required in felony cases, and, under our state statutes, unanimity is required in all criminal cases.”¹⁰ Unanimity ensures that all jurors reach a consensus “on the same act for a conviction.” ¹¹ To discern what a jury must be unanimous about, appellate courts examine the statute defining the offense to determine whether the Legislature “creat[ed] multiple, separate offenses, or a single offense” with different methods or means of commission.¹² “[J]ury unanimity is required on the essential elements of the offense” but is “generally not required on the alternate modes or means of commission.” ¹³ Therefore, it is necessary to identify the essential elements or gravamen of an offense and the alternate modes of commission, if any.¹⁴ This is accomplished by diagramming the statutory text according to the rules of grammar.¹⁵ The essential elements of an offense are, at a minimum: (1) “the subject (the defendant);” (2) “the main verb;” (3) “the direct object if the main verb requires a direct object (i.e., the offense is a result-oriented crime);”¹⁶ “the specific occasion[;]”¹⁷ and the requisite mental state. The means of commission or nonessential unanimity elements are generally set out in “adverbial phrases” that describe how the offense was committed.¹⁸ Such phrases are commonly preceded “by the preposition ‘by[.]’ ”¹⁹

The unanimity requirement is not violated when the jury has the option of choosing between alternative modes of commission.²⁰ 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.²¹

The version of the indecency with a child statute, Section 21.11, Penal Code, in effect when Pizzo committed the offense stated: “(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he: (1) engages in sexual contact with the child;... .”²² The definition of “sexual contact,” located in Section 21.01(2) of the Penal Code, was defined as follows: “any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.”²³

Pizzo argues that the definition of sexual contact includes three “separate and discrete” offenses and that “the disjunctive pleading leaves all to speculate as to whether the verdict was truly unanimous — or whether the jurors were divided on that count or paragraph between the breast-touching and the genital-touching.” Pizzo therefore claims that this case is controlled by Francis, which “condemned this type of charge under these circumstances.” The State contends that the touching of the breast and genitals are different methods of committing the offense of indecency by contact “and therefore, may be proved disjunctively.” The State asserts: “Where both types of contact occur at the same time, they constitute a single act.” Because each incident involved the touching of the breasts and genitals, the State maintains that Francis is inapplicable.

Before we analyze the text of Penal Code Sections 21.11(a)(1) and 21.01(2), we consider our opinions in Kitchens, which the court of appeals relied on in affirming Pizzo’s conviction, and Francis, which Piz-zo relies on to support his claim of error by the court of appeals.

In Kitchens, we were called upon to decide whether the jury instruction, which set out two alternative ways of committing capital murder — in the course of sexual assault or robbery — in one application in the disjunctive when the two alternative theories had been alleged in separate paragraphs of the indictment in the conjunctive, failed to require a unanimous jury verdict.²⁴ We concluded that a jury may issue a general verdict where different modes of commission are submitted in the disjunctive and there is sufficient evidence to support either mode of commission.²⁵ As a result, we held that the disjunctive jury instruction required a unanimous verdict.²⁶

In Francis, the indictment charged Francis, the appellant, with one count of indecency by contact.²⁷ The State presented evidence of four separate acts but elected to proceed on two of the acts that had occurred on different dates, “one involving the touching of the victim’s breasts and one involving the touching of the victim’s genitals.”²⁸ After the trial judge denied his request to require the State to elect between the two acts, Francis objected to the disjunctive jury instruction, stating “ ‘we would object to the language that says ‘engage in sexual contact by touching the breast or genitals.... ’ We would object to using the term ‘or’ and request that the charge be read ‘breast and genitals ....’”²⁹ The trial judge overruled the objection and a jury ultimately found Francis guilty.³⁰ On appeal, Francis claimed that the jury charge “allowed a conviction on less than a unanimous verdict.” ³¹ The Fort Worth Court of Appeals held that the “charge merely included different means of committing the charged offense[.]”³² We granted review to determine whether the court of appeals erred.³³ Distinguishing Kitchens, we noted that “alternate theories of committing the same offense were not submitted to the jury in the instant case. Rather, two separate offenses were submitted to the jury in the disjunctive.”³⁴ We observed that there had not been “a single incident alleged in which [Francis] touched both the breasts and the genitals of the victim.”³⁵ We stated that “it is possible that six members of the jury convicted [Francis] on the breast-touching offense ... and six members convicted [Francis] on the genital-touching offense....”³⁶ We then held that the disjunctive jury instruction “created the possibility of a non-unanimous jury verdict” and reversed the judgment of the court of appeals.³⁷

In this case, unlike Francis, the breast-touching and genital-touching occurred during that same incident. With that in mind, we will now examine the statutory text of Sections 22.11(a)(1) and 21.01(2) to determine whether the offense of indecency by contact includes three separate offenses or a single offense with different methods of commission.

Parsing the text of Section 21.11(a)(1) according to the rules of grammar, we end up with the following breakdown:

“A person” — subject (the defendant)

“commits” — verb

“an offense” — direct object

“if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex,” — prepositional phrase

“he” — subject

“engages in” — transitive verb phrase

“sexual contact” — direct object

“with a child” — prepositional phrase

The main verb here is “commits” and the direct object is “offense.” The direct object “offense” refers to the subsequent direct object “sexual contact.” Continuing, our breakdown of the definition of “sexual contact” produces the following:

“touching” — verb

“of’ — preposition

“the anus,” — direct object

“breast,” — direct object

“or” — conjunction

“any part of the genitals” — direct object

“of another person with intent to arouse or gratify the sexual desire of any person” — prepositional phrase

Although the statutory text does not include the preposition “by” as an introduction to the word “touching,” it is implied. To conceptualize this, the definition of “sexual contact” in Section 21.01(2) can be plugged into the text of Section 21.11(a)(1), resulting in the following: “(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he: (1) engages in sexual contact with the child [by] [‘any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.’];....”

Unlike murder, injury to a child, and criminal mischief where the result is the focus, the conduct is the focus of the definition of sexual contact. The definition of sexual contact specifies the nature of the conduct and the required mental state that leads to the result. In defining sexual contact, the Legislature placed limitations on the prohibited conduct by criminalizing only three specific types of acts. A person can engage in sexual contact by touching the anus, by touching the breast, or by touching the genitals with the requisite intent. Each one of these acts represents a different offense. Any alternative mode of commission relates to how the touching was effectuated, not where the touching occurred.

This determination comports with our decision in Vick v. State, in which we held that aggravated sexual assault, as defined in Section 22.021(a)(1)(B), Penal Code, is a conduct-oriented offense that proscribes separate and distinct acts of commission.³⁸ There, we were confronted with the issue of whether the prohibition against double jeopardy precludes multiple prosecutions under Penal Code Section 22.021(a)(1)(B) where the proscribed conduct occurred during the same transaction.³⁹ Looking at the statutory text of subsections (i)-(iv) in Section 22.021(a)(1)(B), we recognized that (i) and (ii) “concern penetration of the child, one focusing on the genital area, and the other on the mouth[,]” while (iii) and (iv) concern “penetration and contact of another in a sexual fashion, by the sexual organ or anus of the child.”⁴⁰ We also observed that subsections (i)-(iv) are separated by “the conjunctive ‘or’ to distinguish and separate different conduct[.]”⁴¹ We then concluded:

The statute criminalizes many types of sexually assaultive conduct with a child. Yet, each section usually entails different and separate acts to commit the various, prohibited conduct. This specificity reflects the legislature’s intent to separately and distinctly criminalize any act which constitutes the proscribed conduct. An offense is complete when a person commits any one of the proscribed acts.⁴²

Based on this determination, we held that “the Legislature, through the language of the statute, has rejected grouping aggravated sexual assaults by ‘transaction.’ ”⁴³ We therefore concluded that the State’s subsequent prosecution of the appellee, Vick, for causing the female sexual organ of the victim to contact appellee’s mouth under subsection (a)(l)(B)(iii) following an acquittal for the offense of causing the penetration of the female sexual organ of the victim with appellee’s sexual organ under subsection (a)(l)(B)(i) was not barred for double jeopardy purposes when the offenses occurred during the same transaction.⁴⁴

The definition of sexual contact bears some of the hallmarks we found determinative to our conclusion that Section 22.021(a)(l)(B)(i)-(iv) criminalizes different, specific types of conduct in Vick⁴⁵ In Vick, we observed that subsections (i)-(iv) in Section 22.021(a)(1)(B) each contain varied direct objects following the verb “causes.”⁴⁶ Sexual contact contains three distinct direct objects — the anus, the breast, and the genitals — following the verb “touching.” Additionally, each specific type of contact, like the offenses in Section 22.021(a)(l)(B)(i)-(iv), are separated by the conjunction “or.” Thus, the offense of indecency by contact is completed when a person commits any one of the three proscribed acts. As with Section 22.021(a)(l)(B)(i)-(iv), the Legislature has refused to group indecency by contact by transaction⁴⁷ Consequently, if a person touches the anus, breasts, and genitals of a child with the requisite intent during the same transaction, the person is criminally responsible for three separate offenses.

Our recent analysis of the statute defining the offense of injury to a child in Section 22.04(a) of the Penal Code in Stuhler v. State⁴⁸ also supports our conclusion. In analyzing Section 22.04(a)(l)-(3), we identified the main verb defining the offense as “ ‘causes’ ” and the direct objects as “ ‘serious bodily injury,’ ‘serious mental deficiency, impairment, or injur/ or plain ‘bodily injury.’ ”⁴⁹ We noted that the Legislature “defined the offense of injury to a child according to the kind and degree of injury that results” and that the “various results are set out in different subsections of the statute, and the degree of the offense is determined, at least in part, according to which of the results the defendant’s act or omission caused.”⁵⁰ Based on this, we held that subsections (l)-(3) in Section 22.04(a) are “elemental” and require juror unanimity.⁵¹

The verb “touching” in the definition of sexual contact serves the same function as the verb “causes” in Section 22.04(a) of the injury to a child statute. Each introduces the specific direct objects provided by the Legislature. The direct objects following the verb “causes” in the injury to a child statute focus on the result of a defendant’s act or omission. In the definition of sexual contact, in contrast, the direct objects are specific types of prohibited conduct, each of which are essential elements of the offense of indecency with a child by contact as defined in Section 22.11(a)(1).

Based on the foregoing, we hold that the Thirteenth Court of Appeals erred in holding that this case is controlled by our decision in Kitchens. Our analysis makes clear that the offense of indecency with a child by contact in Section 22.11(a)(1) is a conduct-oriented offense. “Sexual contact,” as defined in Section 22.01(B), criminalizes three separate types of conduct — touching the anus, touching the breast, and touching the genitals with the requisite mental state. Therefore, each act constitutes a different criminal offense and juror unanimity is required as to the commission of any one of these acts. Because the indictment charged Pizzo with touching the breasts and genitals of A.S. in the conjunctive, Pizzo’s right to a unanimous verdict was possibly violated by the trial judge’s jury instruction charging breasts and genitals in the disjunctive. Like the charge in Francis, the instruction here allowed the jury to convict Pizzo without reaching a unanimous verdict on the same act. It is possible that six jurors convicted Pizzo for touching the breasts of A.S. while six others convicted Pizzo for touching the genitals of A.S.

Conclusion

The trial judge’s jury instruction permitted a conviction on less than a unanimous verdict, and the court of appeals erred in holding otherwise. We therefore reverse the judgment of the court of appeals and remand this case to the court of appeals for a harm analysis.⁵²

PRICE, J., filed a concurring opinion in which JOHNSON and COCHRAN, JJ. ’ joined.

1 . Pizzo v. State, No. 13-03-392-CR, 2005 Tex. App. LEXIS 5457, at *2-4, 2005 WL 1713380, at *1 (Tex.App.-Corpus Christi July 14, 2005) (not designated for publication).

2 . Tex. Penal Code Ann. § 21.11(a)(1) (Vernon Supp.2000); Tex. Penal Code Ann. § 21.01(2) (Vernon Supp.1989), Acts, 1979, 66th Leg., ch. 168, § 1, eff. Aug. 27, 1979.

3 . Pizzo, 2005 WL 1713380, at *1, 2005 Tex. App. LEXIS 5457, at *2.

4 . Id. 2005 WL 1713380, at ⅝2, 2005 Tex.App. LEXIS 5457, at *4.

5 . 823 S.W.2d 256, 258 (Tex.Crim.App.1991).

6 . Pizzo, 2005 WL 1713380, at *1, 2005 Tex. App. LEXIS 5457, at *3-4.

7 . Id. 2005 WL 1713380, at *1, 2005 Tex.App. LEXIS 5457, at *4 (quoting Kitchens, 823 S.W.2d at 258 (omitting citations)).

8 . Id. 2005 WL 1713380, at *1, 2005 Tex.App. LEXIS 5457, at *3-4.

9 . 36 S.W.3d 121, 124-25 (Tex.Crim.App. 2000) (op. on reh'g).

10 . Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.App.2005) (citing Francis, 36 S.W.3d at 126 (Womack, J., concurring) (citing Tex. Const, art. V, § 13; Tex.Code Crim. Proc. Ann. arts. 36.29(a), 37.02, 37.03, 45.034-45.036)).

11 . Francis, 36 S.W.3d at 125 (citing United States v. Holley, 942 F.2d 916, 925 (5th Cir.1991)); see also Ngo, 175 S.W.3d at 745.

12 . Jefferson v. State, 189 S.W.3d 305, 311 (Tex.Crim.App.), cert. denied, — U.S. -, 127 S.Ct. 386, 166 L.Ed.2d 276 (2006) (quoting State v. Johnson, 243 Wis.2d 365, 627 N.W.2d 455, 459-60 (2001) and citing Richardson v. United States, 526 U.S. 813, 817-19, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999)); Stuhler v. State, 218 S.W.3d 706, 718-19 (Tex.Crim.App.2007); see also Vick v. State, 991 S.W.2d 830, 832-33 (Tex.Crim.App.1999) (analyzing aggravated sexual assault statute, Section 22.021, Penal Code, to determine whether it criminalizes different offenses or a single offense with alternate modes of commission).

13 . Jefferson, 189 S.W.3d at 311 (quoting Johnson, 627 N.W.2d at 459-60 and citing Richardson, 526 U.S. at 817-19, 119 S.Ct. 1707); see also Stuhler, 218 S.W.3d at 718 (quoting Jefferson, 189 S.W.3d at 315-16 (Cochran, J., concurring)).

14 . Jefferson, 189 S.W.3d at 311 (quoting Johnson, 627 N.W.2d at 459-60 and citing Richardson, 526 U.S. at 817-19, 119 S.Ct. 1707); Stuhler, 218 S.W.3d at 718 (quoting Jefferson, 189 S.W.3d at 315-16 (Cochran, J., concurring)).

15 . Jefferson, 189 S.W.3d at 314-16 (Cochran, J., concurring); Stuhler, 218 S.W.3d at 718 (adopting the analytical construct provided by Judge Cochran in her concurring opinion in Jefferson).

16 . Jefferson, 189 S.W.3d at 316 (Cochran, J., concurring); Stuhler, 218 S.W.3d at 718 (quoting Jefferson, 189 S.W.3d at 316 (Cochran, J., concurring)).

17 . Jefferson, 189 S.W.3d at 316 (Cochran, J., concurring).

18 . Jefferson, 189 S.W.3d at 315 (Cochran, J., concurring); Stuhler, 218 S.W.3d at 718 (quoting Jefferson, 189 S.W.3d at 316 (Cochran, J., concurring)).

19 . Jefferson, 189 S.W.3d at 316 (Cochran, J., concurring); Stuhler, 218 S.W.3d at 718 (quoting Jefferson, 189 S.W.3d at 316 (Cochran, J., concurring)).

20 . Kitchens, 823 S.W.2d at 258.

21 . Id.

22 . Tex. Penal Code Ann. § 21.11.

23 . Tex. Penal Code Ann. § 21.01 (currently codified at Tex. Penal Code Ann. § 22.11(c) (Vernon 2003), Acts 77th Leg., ch. 739 § 2, eff. Sept. 1, 2001).

24 . 823 S.W.2d at 257.

25 . Id. at 258.

26 . Id. at 258 n. 2.; see also Martinez v. State, 129 S.W.3d 101, 103 (Tex.Crim.App.2004) (holding that the unanimity requirement was not violated where jury was charged in the disjunctive on alternate theories of committing capital murder).

27 . 36 S.W.3dat 122.

28 . Id.

29 .Id.

30 . Id. at 122-23.

31 . Id. at 123.

32 . Id. at 122.

33 . Id.

34 . Id. at 124.

35 . Id.

36 . Id. at 125.

37 . Id.

38 . 991 S.W.2d at 832-833.

39 . Id. at 831.

40 . Id. at 833.

41 . Id.

42 . Id.

43 . Id.

44 . Id.

45 . See also Haight v. State, 137 S.W.3d 48, 50-51 (Tex.Crim.App.2004) (relying on Vick in holding that the statute defining the offense of official oppression, Section 39.03, Texas Penal Code, is a "conduct-oriented statute that criminalizes several different types of conduct, each of which, if committed, would cause a different type of harm to a victim.”).

46 .Vick, 991 S.W.2d at 833.

47 . Id.

48 . 218 S.W.3d at 718-19.

49 . Id. at 718.

50 . Id. at 718-19.

51 . Id. at 719.

52 . Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984).