Jesus E. Cosio v. State ( 2010 )

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.
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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
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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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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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