July 15, 2016

Texas Courts of Appeals

Gomez v. State (1st COA)

No. 01-15-00179-CR        7/12/2016


Should the trial court have instructed the jury that it must unanimously find that a single incident of the charged offense was proven beyond a reasonable doubt?


Yes. In this case, despite bringing only one charge of sexual assault against the defendant, the State presented evidence of at least three separate criminal offenses. The judge should have instructed the jury that its verdict must be unanimous as to a single offense among those presented. The prosecutor’s statement that the jury could “mix and match” offenses was a misstatement of the law, which contributed to the Court’s finding that lack of instruction led to egregious harm. Read.


This case presents the other side of the CCA’s opinions in Cosio and Arrington. It also highlights the danger of not having a command of when unanimity is required and when it is not. Here, unanimity was an issue because multiple discrete events could support a conviction. The court’s charge was erroneous because it did not require unanimity. The error was compounded by an erroneous jury argument. The nature of the factual presentation at trial did not help. Thus, the defendant receives a new trial even though there was no objection to the charge or the erroneous argument. Texas prosecutors need to be familiar with Cosio, Arrington, and Ngo to avoid this situation. For this type of unanimity problem, an instruction like this should suffice:

The State has presented evidence of more than one incident to prove that the defendant committed this offense/count. You must not find the defendant guilty of this offense/count unless you all agree on which incident or incidents occurred beyond a reasonable doubt. You need not all agree on every incident, as long as there is one incident on which all the jurors are unanimous. See Emily Johnson-Liu, “Special unanimity instruction from Cosio v. State,” Texas Prosecutor (TDCAA Nov.-Dec. 2011).


Perez v. State (13th COA)

No. 13-15-00367-CR        7/7/2016


Does a trial court have jurisdiction to grant judicial clemency under CCP article 42.12, §20(a) nearly 11 years after the defendant’s community supervision was dismissed?


No. In this case, the defendant pleaded guilty to a Class A misdemeanor in 2003 and was sentenced to community supervision that he completed in 2004. Eleven years later the trial court granted the defendant judicial clemency.  The court concluded that the judge had no jurisdiction to make this ruling and noted, “if the Legislature intended to provide the trial court with continuing jurisdiction to order judicial clemency at any time after discharging a defendant from community supervision, it would have expressly done so.” Read.


The 13th Court of Appeals joins the 10th and 12th courts of appeals in holding that trial courts cannot, years after releasing a defendant from probation, grant additional relief in the form of “judicial clemency.” The Code grants a court discretion as to how much relief to grant when probation is complete. Some probationers are better than others. This decision (and the others it agreed with) help prevent probationers from taking a second bite at the apple years later with a different judge.

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