Felix Vale v. the State of Texas ( 2024 )

Opinion issued April 11, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00923-CR
———————————
FELIX VALE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Case No. 1711921
MEMORANDUM OPINION
A jury convicted appellant Felix Vale of the first-degree felony offense of
aggravated sexual assault.1 After Vale pleaded true to the allegations in an
1
See TEX. PENAL CODE § 22.021(a)(1)(A)(i), (a)(2)(A)(iv).
enhancement paragraph, the jury assessed Vale’s punishment at eighty-two years’
confinement.
In his sole issue on appeal, Vale argues that the jury charge, which submitted
“various theories of aggravated sexual assault” to the jury in the disjunctive,
erroneously allowed the jury to convict him on less than a unanimous verdict. We
affirm.
Background
During Winter Storm Uri in February 2021, the Houston area experienced
near-record cold temperatures, and many homes and businesses lost power for
prolonged periods of time. On the evening of February 16, the complainant A.F.
(“Alex”)2 and his roommate, Eric, lost power. After dropping Eric’s daughter off at
her grandfather’s house in Conroe, Alex and Eric decided to go to the Fountainhead,
a local bar near their house in Spring, to spend time and warm up.
Few people had decided to venture outdoors in the cold weather, but Alex and
Eric were not alone at the Fountainhead. In addition to the bartender, Vale and his
friend Ariel Cordoba were also present. Vale, Eric, and Alex were all regular
customers of the bar.
For several hours, the atmosphere in the bar was relaxed and congenial. The
four patrons all had multiple drinks, Alex used his cell phone to play music over the
2
In this opinion, we refer to the complainant by a pseudonym to protect his privacy.
2
bar’s speakers, and everyone engaged in friendly conversation. However, shortly
after 2:00 a.m. on February 17, Cordoba became upset and started yelling and
insulting Eric’s wife. Eric walked away to a different part of the bar, and Cordoba
threw a shot glass at Alex, which hit him in the face. Both Vale and Cordoba then
assaulted Alex with their fists, boots, and pieces of broken barstools. Cordoba also
hit Alex in the head with a gun and fired a gunshot inside the bar.
Throughout the assault, Vale repeatedly yelled vulgarities and made violent
threats, including a threat to sexually assault Alex by anal penetration. Surveillance
footage from inside the bar showed Cordoba assisting Vale in pulling Alex’s pants
partially down while Alex was lying on the floor. The footage also showed Vale with
his hand down Alex’s pants, and Vale could be heard narrating his actions. The
actual act of penetration was not visible on the footage. Eric and the bartender hid in
other parts of the bar and did not directly witness this portion of this assault. Alex
was unconscious for most of the assault, and he was unable to remember what had
happened. Alex was severely injured, and he required multiple surgeries, including
dental implants and placement of a metal plate underneath his eye.
The grand jury charged Vale with the offense of aggravated sexual assault. 3
The six-paragraph indictment read as follows:
3
The grand jury also charged Vale with the offenses of aggravated assault and
aggravated robbery, but those offenses were not tried in the underlying proceeding.
3
The duly organized Grand Jury of Harris County, Texas, presents in the
District Court of Harris County, Texas, that in Harris County, Texas,
FELIX VALE, hereafter styled the Defendant, heretofore on or about
February 17, 2021, did then and there unlawfully, intentionally and
knowingly cause the penetration of the anus of A.F., hereinafter called
the Complainant, by placing the fingers of the Defendant in the anus of
the Complainant, without the consent of the Complainant, namely, the
Complainant had not consented and the Defendant knew that the
Complainant was unconscious and physically unable to resist, and in
the course of the same criminal episode, the Defendant used and
exhibited a deadly weapon, namely a firearm.
It is further presented that in Harris County, Texas, FELIX VALE,
hereafter styled the Defendant, heretofore on or about February 17,
2021, did then and there unlawfully intentionally and knowingly cause
the penetration of the anus of A.F., hereinafter called the Complainant,
by placing the fingers of the Defendant in the anus of the Complainant,
without the consent of the Complainant, namely, the Complainant had
not consented and the Defendant knew that the Complainant was
unconscious and physically unable to resist, and in the course of the
same criminal episode, the Defendant used and exhibited a deadly
weapon, namely a boot.
It is further presented that in Harris County, Texas, FELIX VALE,
hereafter styled the Defendant, heretofore on or about February 17,
2021, did then and there unlawfully intentionally and knowingly cause
the penetration of the anus of A.F., hereinafter called the Complainant,
by placing the fingers of the Defendant in the anus of the Complainant,
without the consent of the Complainant, namely, the Complainant had
not consented and the Defendant knew that the Complainant was
unconscious and physically unable to resist, and in the course of the
same criminal episode, the Defendant used and exhibited a deadly
weapon, namely a stool.
It is further presented that in Harris County, Texas, FELIX VALE,
hereafter styled the Defendant, heretofore on or about February 17,
2021, did then and there unlawfully intentionally and knowingly cause
the penetration of the anus of A.F., hereinafter called the Complainant,
by placing an unknown object in the anus of the Complainant, without
the consent of the Complainant, namely, the Complainant had not
consented and the Defendant knew that the Complainant was
4
unconscious and physically unable to resist, and in the course of the
same criminal episode, the Defendant used and exhibited a deadly
weapon, namely a firearm.
It is further presented that in Harris County, Texas, FELIX VALE,
hereafter styled the Defendant, heretofore on or about February 17,
2021, did then and there unlawfully intentionally and knowingly cause
the penetration of the anus of A.F., hereinafter called the Complainant,
by placing an unknown object in the anus of the Complainant, without
the consent of the Complainant, namely, the Complainant had not
consented and the Defendant knew that the Complainant was
unconscious and physically unable to resist, and in the course of the
same criminal episode, the Defendant used and exhibited a deadly
weapon, namely a boot.
It is further presented that in Harris County, Texas, FELIX VALE,
hereafter styled the Defendant, heretofore on or about February 17,
2021, did then and there unlawfully intentionally and knowingly cause
the penetration of the anus of A.F., hereinafter called the Complainant,
by placing an unknown object in the anus of the Complainant, without
the consent of the Complainant, namely, the Complainant had not
consented and the Defendant knew that the Complainant was
unconscious and physically unable to resist, and in the course of the
same criminal episode, the Defendant used and exhibited a deadly
weapon, namely a stool.
The jury charge tracked the language of the indictment and authorized the jury
to convict Vale of aggravated sexual assault based on any of the six theories alleged
in the indictment: (1) penetration with Vale’s fingers while using or exhibiting a
firearm; (2) penetration with Vale’s fingers while using or exhibiting a boot;
(3) penetration with Vale’s fingers while using or exhibiting a stool; (4) penetration
with an unknown object while using or exhibiting a firearm; (5) penetration with an
unknown object while using or exhibiting a boot; or (6) penetration with an unknown
object while using or exhibiting a stool. The charge also authorized the jury to
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convict Vale based on Cordoba’s actions under the law of parties for each of the six
alleged theories. Thus, the charge included twelve application paragraphs set out in
the disjunctive. Vale did not object to the charge on the basis that it authorized a
non-unanimous verdict.
The jury found Vale guilty of the offense of aggravated sexual assault “as
charged in the indictment.” After Vale pleaded true to the allegations in an
enhancement paragraph, the jury assessed Vale’s punishment at eighty-two years’
confinement. This appeal followed.
Jury Unanimity
In his sole issue, Vale argues that the jury charge—which submitted in the
disjunctive twelve application paragraphs setting out “various theories of aggravated
sexual assault”—permitted the jury to convict Vale without being unanimous on all
elements of the offense.
A. Standard of Review and Governing Law
We use a two-step analysis when addressing claims of jury charge error.
Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). First, we determine
whether the charge is erroneous. Id. If it is, then we must decide whether the
erroneous charge harmed the defendant. Id. When, as here, the defendant does not
object in the trial court to the jury charge, the record must show “egregious harm.”
Id.; Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016) (“If the
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defendant did not timely object to the jury instructions, then reversal is required only
if the error was so egregious and created such harm that the defendant did not have
a fair and impartial trial.”).
Charge error causes egregious harm if it “affects the very basis of the case,
deprives the defendant of a valuable right, or vitally affects a defensive theory.”
Marshall, 479 S.W.3d at 843; Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App.
2011). Typically, when examining the record to determine whether charge error is
egregious, we consider: (1) the entirety of the jury charge itself; (2) the state of the
evidence; (3) arguments of counsel; and (4) any other relevant information revealed
by the entire trial record. Marshall, 479 S.W.3d at 843; Cosio, 353 S.W.3d at 777.
A finding of egregious harm must be based on actual rather than theoretical harm.
Alcoser, 663 S.W.3d at 165. This is a fact-specific analysis that is made on a case-
by-case basis. Id.; Marshall, 479 S.W.3d at 843.
A criminal defendant in Texas has the right to a unanimous jury verdict on
each element of the charged offense. French v. State, 563 S.W.3d 228, 233 (Tex.
Crim. App. 2018). “Texas law requires that a jury reach a unanimous verdict about
the specific crime that the defendant committed. This means that the jury must ‘agree
upon a single and discrete incident that would constitute the commission of the
offense alleged.’” Cosio, 353 S.W.3d at 771 (quoting Stuhler v. State, 218 S.W.3d
706, 717 (Tex. Crim. App. 2007)); Landrian v. State, 268 S.W.3d 532, 535 (Tex.
7
Crim. App. 2008) (“The jury must agree that the defendant committed one specific
crime.”); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005) (“Unanimity in
this context means that each and every juror agrees that the defendant committed the
same, single, specific criminal act.”). “It is error to authorize a jury to render a guilty
verdict without reaching a unanimous decision as to each element of the charged
offense.” French, 563 S.W.3d at 233.
Although the jury must unanimously agree that the defendant committed a
specific crime, the jury is not required to unanimously “find that the defendant
committed that crime in one specific way or even with one specific act.” Landrian,
268 S.W.3d at 535; Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011)
(“[T]he jury must unanimously agree about the occurrence of a single criminal
offense, but they need not be unanimous about the specific manner and means of
how that offense was committed.”). A jury charge does not violate the requirement
of jury unanimity if it “presents the jury with the option of choosing among various
alternative manner and means of committing the same statutorily defined offense.”
Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014) (citing Pizzo v. State,
235 S.W.3d 711, 715 (Tex. Crim. App. 2007)); Ngo, 175 S.W.3d at 745 (“The phrase
‘manner or means’ describes how the defendant committed the specific statutory
criminal act.”). “Therefore, different modes of commission may be presented in a
jury instruction in the disjunctive when the charging instrument, in a single count,
8
alleged the different means in the conjunctive.” Jourdan, 428 S.W.3d at 94 (quoting
Pizzo, 235 S.W.3d at 715).
Penal Code section 22.021 provides that a person commits the offense of
aggravated sexual assault of an adult if the person intentionally or knowingly:
(1) causes the penetration of the anus or sexual organ of another
person by any means, without that person’s consent;
(2) causes the penetration of the mouth of another person by the
sexual organ of the actor, without that person’s consent; or
(3) causes the sexual organ of another person, without that person’s
consent, to contact or penetrate the mouth, anus, or sexual organ
of another person, including the actor
and one or more aggravating factors—such as that the person uses or exhibits a
deadly weapon in the course of the same criminal episode—exists. See TEX. PENAL
CODE § 22.021(a)(1)(A), (a)(2); Nickerson v. State, 69 S.W.3d 661, 671 (Tex.
App.—Waco 2002, pet. ref’d) (“Section 22.021(a)(1)(A) of the Penal Code
proscribes three discrete acts which constitute the allowable units of prosecution in
a case in which the victim is an adult.”).
Aggravated sexual assault is a “nature of conduct” offense. Gonzales v. State,
304 S.W.3d 838, 847–49 (Tex. Crim. App. 2010) (stating such in context of
complaint about double jeopardy).4 In such offenses, “the act itself is the gravamen
4
The Court of Criminal Appeals has stated that its double-jeopardy jurisprudence is
“closely intertwined” with its jury-unanimity jurisprudence, and thus when it has
construed different provisions of the aggravated sexual assault statute to “carve out
separate offenses for double jeopardy purposes, [it has] essentially held that they are
9
of the offense,” and “it is the act or conduct that is punished, regardless of any result
that might occur.” Young, 341 S.W.3d at 423. The different types of conduct that are
proscribed by the aggravated sexual assault statute “should ordinarily be regarded as
different offenses,” whether the acts are specified in different subsections of the
statute or are “specified within separate and disjunctive phrases in the same
subsection.” Gonzales, 304 S.W.3d at 848–49; see Aekins v. State, 447 S.W.3d 270,
278 (Tex. Crim. App. 2014) (“This is true for acts violating not only different
statutes, but different subsections of a single statute, and even different discretely
prohibited acts within the same subsections.”).
Thus, “[p]enetration of the anus constitutes a discrete act from penetration of
the sexual organ, even if they occur within a short period of time.” Gonzales, 304
S.W.3d at 849; see Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999)
(stating that aggravated sexual assault statute “is a conduct-oriented statute; it uses
the conjunctive ‘or’ to distinguish and separate different conduct; and its various
sections specifically define sexual conduct in ways that usually require different and
distinct acts to commit”). “With ‘nature of conduct’ crimes, the jury must be
unanimous about the specific criminal act.” Young, 341 S.W.3d at 424.
separate offenses for jury unanimity purposes as well.” French v. State, 563 S.W.3d
228, 233–34 (Tex. Crim. App. 2018) (quoting Gonzales v. State, 304 S.W.3d 838,
848 (Tex. Crim. App. 2010)).
10
In Jourdan v. State, one of the questions before the Court of Criminal Appeals
was whether the charge given to the jury was erroneous because it authorized a
conviction without determining whether the defendant penetrated the complainant’s
sexual organ with his own sexual organ as opposed to with his finger. See 428
S.W.3d at 94–96. The court noted that the relevant subsection of the aggravated
sexual assault statute—the same subsection at issue in this case—“does not
disjunctively specify different types of conduct.” Id. at 95; TEX. PENAL CODE
§ 22.021(a)(1)(A)(i) (providing that person commits offense of aggravated sexual
assault if person intentionally or knowingly “causes the penetration of the anus or
sexual organ of another person by any means, without that person’s consent”).
Instead, the subsection “simply proscribes the same type of conduct—‘penetration’
(albeit of more than one statutorily specified orifice)—perpetrated ‘by any means.’”
Jourdan, 428 S.W.3d at 95.
The court then analyzed the grammatical structure of the subsection to
determine the gravamen of the offense. Id. at 95–96. The court stated:
Utilizing the so-called “eighth-grade grammar” test for discerning the
gravamen of a given offense, we note that Section 22.021(a)(1)(A)(i)
supplies a noun (“person”), a main verb (“causes”) and direct object
(“penetration”), plus three adverbial phrases (“of the anus or sexual
organ”/“of another person”/“by any means”). Ordinarily, we have not
regarded adverbial phrases as “elemental” for jury unanimity purposes.
But here, the first two adverbial phrases provide a level of specificity
that arguably serves to define discretely actionable units of prosecution
even within the same statutory subsection. Accordingly, a defendant
may be susceptible to prosecution under Section 22.021(a)(1)(A)(i) for
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as many “persons” as he penetrated during the same transaction, and
for as many statutorily delineated orifices as the evidence may show he
penetrated. The last adverbial phrase in the subsection, on the other
hand, is non-specific, and we agree with the State that this signals a
legislative indifference to how the penetrations may be accomplished.
Thus defined, the gravamen of the subsection is penetration, not the
various and unspecified “means” by which that penetration may be
perpetrated, which are not elemental.
Id. at 96 (internal citations omitted). The Court of Criminal Appeals concluded that
“the penetration of a single orifice”—the complainant’s sexual organ—during the
same transaction “constituted but one offense under Section 22.021(a)(1)(A)(i),
regardless of the various manner and means by which the evidence may show that
the penetration occurred.” Id. Therefore, the jury “was not required to reach
unanimity with respect to whether” the defendant penetrated the complainant with
his sexual organ or his finger during that transaction. Id.; see Aekins, 447 S.W.3d at
279 (stating that jury unanimity is required for “distinct acts” of penetrating anus or
sexual organ, but unanimity is “not required for the different means of committing a
single distinct act (e.g., penetrating the anus with the defendant’s finger, mouth, or
sexual organ)”).
B. Whether the Jury Charge Permitted a Non-Unanimous Verdict
Here, the indictment contained six paragraphs setting out allegations that Vale
committed aggravated sexual assault of Alex by intentionally and knowingly causing
the penetration of Alex’s anus while using or exhibiting a deadly weapon. In three
paragraphs, the grand jury alleged that Vale caused the penetration of Alex’s anus
12
by placing his fingers in Alex’s anus while using or exhibiting a deadly weapon
during the course of the criminal episode. These three paragraphs then differed from
each other with respect to the deadly weapon allegedly used or exhibited: a firearm,
a boot, or a stool. The remaining three paragraphs of the indictment alleged that Vale
caused the penetration of Alex’s anus by placing an unknown object in Alex’s anus
while using or exhibiting a deadly weapon during the course of the criminal episode.
These three paragraphs again differed from each other with respect to the deadly
weapon allegedly used or exhibited: a firearm, a boot, or a stool.
The jury charge contained application paragraphs corresponding to each
paragraph alleged in the indictment. The charge also contained six additional
application paragraphs authorizing a conviction of Vale based on Cordoba’s actions
under the law of parties. For example, the first two application paragraphs in the
charge read as follows:
Now, if you find from the evidence beyond a reasonable doubt that on
or about the 17th day of February, 2021, in Harris County, Texas, the
defendant, Felix Vale, did then and there unlawfully, intentionally or
knowingly cause the penetration of the anus of A F, by placing the
fingers of the defendant in the anus of A F, without the consent of A F,
namely, A F had not consented and the defendant knew that A F was
unconscious or physically unable to resist, and in the course of the same
criminal episode, the defendant used or exhibited a deadly weapon,
namely a firearm, or
If you find from the evidence beyond a reasonable doubt that on or
about the 17th day of February, 2021, in Harris County, Texas, Ariel
Cordoba, did then and there unlawfully, intentionally or knowingly
cause the penetration of the anus of A F, by placing [her] fingers in the
13
anus of A F, without the consent of A F, namely, A F had not consented
and Ariel Cordoba knew that A F was unconscious or physically unable
to resist, and in the course of the same criminal episode, Ariel Cordoba
used or exhibited a deadly weapon, namely a firearm, and that the
defendant, Felix Vale, with the intent to promote or assist the
commission of the offense, if any, solicited, encouraged, directed, aided
or attempted to aid Ariel Cordoba to commit the offense, if he did,
or . . . .
The charge contained ten other application paragraphs. The other application
paragraphs authorized the jury to convict Vale: (1) as a principal actor if he used his
fingers to penetrate Alex and used or exhibited a boot; (2) as a party if Cordoba used
her fingers to penetrate Alex and used or exhibited a boot; (3) as a principal actor if
he used his fingers to penetrate Alex and used or exhibited a stool; (4) as a party if
Cordoba used her fingers to penetrate Alex and used or exhibited a stool; (5) as a
principal actor if he used an unknown object to penetrate Alex and used or exhibited
a firearm; (6) as a party if Cordoba used an unknown object to penetrate Alex and
used or exhibited a firearm; (7) as a principal actor if he used an unknown object to
penetrate Alex and used or exhibited a boot; (8) as a party if Cordoba used an
unknown object to penetrate Alex and used or exhibited a boot; (9) as a principal
actor if he used an unknown object to penetrate Alex and used or exhibited a stool;
or (10) as a party if Cordoba used an unknown object to penetrate Alex and used or
exhibited a stool. The charge submitted all twelve application paragraphs in the
disjunctive.
14
We agree with the State that each of the six paragraphs in the indictment
alleged the same statutorily defined offense, albeit by a different manner and means.
Each paragraph alleged “the penetration of a single orifice” (the anus) of a single
complainant (Alex) while an aggravating factor was present (the use or exhibition
of a deadly weapon) during the same transaction. See Jourdan, 428 S.W.3d at 96.
The paragraphs differed from each other only in what was allegedly used to cause
the penetration of Alex’s anus (fingers or an unknown object) and in which deadly
weapon was allegedly used or exhibited during the course of the criminal episode (a
firearm, a boot, or a stool). The State presented evidence that only one instance of
penetration occurred in the early morning hours of February 17, 2021, although it
was unclear what object was used to cause the penetration. This was, therefore, not
a situation in which the State presented evidence that Vale committed the charged
offense of aggravated sexual assault of Alex on “multiple but separate occasions.”
See Cosio, 353 S.W.3d at 771–72 (describing different situations in which non-
unanimity can occur, including when State presents evidence that defendant
committed charged offense on multiple occasions, and stating that because “[e]ach
of the multiple incidents individually establishes a different offense or unit of
prosecution,” trial court’s charge must instruct jury that “its verdict must be
unanimous as to a single offense or unit of prosecution among those presented”).
15
We also agree with the State that the jury was not required to be unanimous
on which deadly weapon Vale used or exhibited during the sexual assault. In
Landrian, the jury charge submitted in the disjunctive two different aggravating
factors that elevated the case from assault to aggravated assault: (1) the person causes
serious bodily injury to another; or (2) uses or exhibits a deadly weapon during the
commission of the assault. See 268 S.W.3d at 534. In concluding that the jury was
not required to be unanimous on the aggravating factor, the Court of Criminal
Appeals noted that the gravamen of the offense of aggravated assault “is the specific
type of assault defined in [Penal Code] Section 22.01,” such as causing bodily injury
to the complainant. See id. at 537. Aggravated assault “increases the penalty for
simple ‘bodily injury’ assault” if an aggravating factor is present. Id. at 538.
The court concluded that “simple ‘bodily injury’ assault is punished more
severely depending upon the degree of the victim’s injury or the manner in which
the defendant committed the particular assault.” Id. The Texas Legislature had
“evinced no intent that jurors need be unanimous about which aggravating factor or
element that they find—severity of injury or manner in which the defendant caused
the injury.” Id. at 538–39. Regardless of which aggravating factor is present, “[i]t is
still the same single criminal act and still the same single bodily injury to the victim.”
Id. at 539. Thus, “[b]ecause the aggravated-assault statute defines two or more
circumstances or factors by which the defendant’s punishment for a specific criminal
16
act is increased, the defendant may be convicted if each juror concludes that at least
one of the aggravating factors or elements exist.” Id.; Miranda v. State, 391 S.W.3d
302, 310 (Tex. App.—Austin 2012, pet. ref’d) (“[A]ggravating factors that
transform a sexual assault into an aggravated sexual assault, such as the assailant’s
use of a deadly weapon or threatening the victim with bodily harm, are only different
methods or means of committing a single offense.”).
Here, each of the twelve application paragraphs alleged the same aggravating
factor to elevate the offense from sexual assault to aggravated sexual assault: that
Vale (or Cordoba) used or exhibited a deadly weapon in the course of the same
criminal episode as the sexual assault. See TEX. PENAL CODE § 22.021(a)(2)(A)(iv).
The only difference between the application paragraphs was the deadly weapon
allegedly used or exhibited: a firearm, a boot, or a stool. The application paragraphs
do not set forth different offenses; rather, they set out different manner and means
of committing the same offense of aggravated sexual assault in which a deadly
weapon is used or exhibited. The jury was not required to be unanimous on which
deadly weapon was used or exhibited during the offense. See Miranda, 391 S.W.3d
at 311 (“[T]he jury is not required to unanimously agree about which aggravating
factor is present in an aggravated sexual assault, because the various aggravating
factors do not constitute distinct offenses.”); see also Pizzo, 235 S.W.3d at 715 (“The
unanimity requirement is not violated when the jury has the option of choosing
17
between alternative modes of commission.”); Woodard v. State, 294 S.W.3d 605,
608–09 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (following Landrian in
aggravated robbery case and holding that “unanimity as to the aggravating factors
was not required”).
Finally, we agree with the State that the six application paragraphs authorizing
the jury to convict Vale as a principal actor and the six application paragraphs
authorizing the jury to convict Vale under the law of parties are also alternate manner
and means of committing one charged offense of aggravated sexual assault. The law
of parties does not define the prohibited conduct that comprises a criminal offense
but instead defines “conditions by which an accused may be deemed criminally
responsible for the conduct of another that satisfies the elements or gravamen” of
the offense. Leza v. State, 351 S.W.3d 344, 357 (Tex. Crim. App. 2011). When there
is evidence that the defendant is guilty of every element of the charged offense—
either as a principal actor or under a theory of party liability—but there is a question
of the defendant’s precise role in the offense, “it would be plainly absurd to require
the jury to acquit the accused unless it can unanimously determine his status as a
principal actor or a party and, if the latter, what his exact party accountability might
be.” Id.; Miranda, 391 S.W.3d at 311–12; see also Holford v. State, 177 S.W.3d 454,
462–63 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (noting that disjunctive
application paragraphs allowing jury to convict defendant of capital murder as
18
principal actor or as party “describes a different means of committing the same act”
and court was not required to instruct jury that it must unanimously agree on manner
of complainant’s murder).
We conclude that the twelve application paragraphs disjunctively submitted
to the jury in the charge authorized the jury to convict Vale of one offense:
aggravated sexual assault by penetration of Alex’s anus in which a deadly weapon
was used or exhibited. The different paragraphs merely set forth different means of
committing the single charged offense. See Young, 341 S.W.3d at 422 (“[T]he jury
must unanimously agree about the occurrence of a single criminal offense, but they
need not be unanimous about the specific manner and means of how that offense
was committed.”). We hold that the trial court’s jury charge did not violate Vale’s
right to a unanimous verdict.
We overrule Vale’s sole issue.
Conclusion
We affirm the judgment of the trial court.
April L. Farris
Justice
Panel consists of Justices Goodman, Countiss, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
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