Recent developments in the law impact how an indictment should be structured, how the jury can be charged, and whether you get to keep your hard-earned convictions.
Two years ago in an article in the Texas Prosecutor, Harris County ADA Alan Curry warned of the dangers of charging the jury in the disjunctive for conduct alleged in separate counts. He explained that, under the seminal cases of Ngo v. State1 and Francis v. State,2 charging distinct offenses disjunctively in the jury charge could cause a violation of the defendant’s right to “jury unanimity.” As Alan predicted, although the law of jury unanimity originally came up most frequently in child sex abuse cases, it has now been applied in numerous criminal cases with varying results. In addition, in 2007, the Court of Criminal Appeals handed down an important case impacting how indictment language should be interpreted.3 Together these two lines of cases have complicated the process of constructing and construing indictments and charging juries.
Counts or paragraphs—what’s the big deal?
The State may join separate offenses in one indictment with each offense alleged as a separate count as long as the offenses arise out of the same criminal episode. The term “criminal episode” is defined as offenses committed pursuant to the same transaction or scheme or the repeated commission of the same or similar offenses.4 As a general rule, the term “count” in an indictment is used to charge each offense itself, and “paragraph” refers to the portions of a count that charge the methods, theories, or “manner or means” of committing that offense.5 Texas courts of appeals have historically looked at the substance of the allegation in an indictment, not the terminology or headings used, to determine its character as a “count” or “paragraph.”6 Though the Court of Criminal Appeals has subscribed to this understanding, it has not been as explicit about it as the courts of appeals.7
Nevertheless, without overruling or limiting this line of authority, the Court of Criminal Appeals held in 2007 that labeling a section of text in an indictment as a “count” restricts the State to only one conviction for that section of text, regardless of how many criminal acts were actually alleged therein.8 In Martinez v. State, a three-count indictment charged the defendant with indecency by contact, indecency by exposure, and aggravated sexual assault of his minor stepdaughter. These three counts contained a total of eight paragraphs, each of which actually alleged a separate criminal act and a distinct offense (e.g., “penetrated the complainant’s anus with his sexual organ” and “caused the complainant’s sexual organ to contact his mouth”).9 Realizing the potential for a jury unanimity error if the jury were allowed to choose among these criminal acts in reaching a general verdict, the trial court instructed the jury to unanimously find (on separate verdict forms) whether the defendant committed each of six different criminal acts.10 The defendant ultimately received four convictions based on the three-count indictment.11 Citing the defendant’s due process right to notice and right to grand jury screening of the charges, the court held: “Because there were only three counts … the indictment authorized only three convictions (and only one conviction per count).”12 The court set aside one of the convictions, leaving the defendant with one conviction per count.
There are not a lot of cases on the books yet interpreting Martinez. The Third Court of Appeals (whose original decision was reversed in Martinez) has steadfastly adhered to the precedent set by Martinez.13 Meanwhile, in other contexts, courts of appeals have continued to rely on the line of cases holding that the indictment should be interpreted according to the true meaning of its language.14 However, the result in those cases has not contradicted the court’s holding in Martinez that a defendant may not receive more convictions than the number of counts in the indictment.
The more you Ngo (about jury instructions)
Texas law requires a unanimous jury verdict in felony criminal cases,15 meaning that the appellate court must be able to tell from the jury instructions and verdict forms that the jury was in unanimous agreement as to each element of the particular felony offense at issue. Courts have also extended the unanimity requirement to lesser-included offenses and attempted (inchoate) offenses.16 How the jury instruction should read depends on whether you are dealing with different manner and means or different offenses.
In general, if an indictment alleges different methods of committing an offense in the conjunctive (acts separated by “and”), it is appropriate to submit the different methods to the jury in the disjunctive (acts separated by “or”).17 Prosecutors often repeat the rule of thumb, “Plead in the conjunctive; charge in the disjunctive,” though it is getting harder and harder to use that as a general rule. Jurors can pick and choose among the acts and render one unanimous general verdict, so long as their choices merely involve theories (“manner and means”) or “underlying brute facts” of one criminal offense.18
On the other hand, acts that are really “separate offenses” should not be submitted to the jury in the disjunctive (that is, separated by “or”).19 If distinct offenses are charged disjunctively to the jury and the jury reaches a general verdict, then the appellate court cannot tell what criminal act the jury agreed on, if any. The jury is effectively allowed to come to a non-unanimous verdict and the defendant’s constitutional rights are violated.20
This distinction may sound simple in theory, but it is not so simple in practice. The trick is in determining from the statutory language what represents a different method, theory, or “manner and means” and what constitutes a different offense altogether. The Court of Criminal Appeals has historically focused on whether the statute is conduct-oriented, result-oriented, or a “nature of circumstances” offense. If the offense is a “result of conduct” crime, then different types of results are likely to be separate offenses and different types of conduct may be manner and means. On the other hand, if the offense is a “nature of conduct” crime, then different types of conduct set out in the statute are likely to be separate offenses, but their results may be manner and means. Likewise, if the statute sets out a “nature of circumstances” offense, the jury must be unanimous about the statutorily defined circumstances surrounding the offense.21
Unfortunately for those of us who long ago threw away our middle school textbooks, the Court of Criminal Appeals has in recent years employed an “eighth-grade grammar test” in determining whether an offense is result-oriented or conduct-oriented and in identifying the specific elements about which the jury must agree.22 The essential elements of an offense are generally: 1) the subject (the defendant); 2) the main verb; 3) the direct object if the main verb requires a direct object; the specific occasion; and the requisite mental state. Generally, the offense is result-oriented if the verb used in the statute is “causes” and the direct object is some type of injury.23 The manner and means of commission (or nonessential elements) are generally set out in “adverbial phrases” introduced by the preposition “by” that describe how the offense was committed.24 The jury usually does not have to be unanimous about the conduct contained in such adverbial phrases.
In addition, the court looks at whether the statute uses the conjunction “or” to distinguish different conduct and whether the subsections of the statute specifically define conduct in ways that usually require different and distinct acts. If so, the court is likely to interpret those statutory subsections as separate offenses about which the jury must be unanimous, rather than manner and means.25
Eighth-grade grammar lessons
Texas courts have had a chance to exercise their elementary grammar skills in applying jury unanimity law to various penal statutes. The results have been mixed.
Jury unanimity issues have arisen in all types of homicide cases. As a general matter, the courts have held that different homicide theories involving the death of the same victim are simply alternate methods of committing the same offense. This is because murder is a result-oriented crime, and the death of the victim is the gravamen of the offense.26 Accordingly, courts have not required unanimity in murder cases regarding Penal Code §19.02(b)(1) and (2)—i.e., whether a defendant intentionally caused the victim’s death or intended to cause the victim serious bodily injury and committed an act clearly dangerous to human life.27
In White v. State,28 the felony-murder indictment alleged in two paragraphs that the defendant caused the victim’s death during the commission of unauthorized use of a vehicle and during the commission of evading arrest. The jury charge allowed the jury to convict the defendant of felony murder if it found that he caused the victim’s death while committing either one of these two felonies.29 The Court of Criminal Appeals noted that the transitive verb of §19.02(b)(3) was “commits” followed by the term “felony.” Thus, the court held that the jury had to be unanimous about whether the defendant committed a felony, but not any specific felony. The various specific felonies the defendant may have committed were merely manner and means and did not require jury unanimity.30
On the other hand, the Court of Criminal Appeals found reversible error where a jury was not instructed that it must unanimously agree upon any one of the three different criminal acts: the murder of the defendant’s mother, the murder of his father, or the murder of both.31 Although the court did not fully explain its holding, these allegations clearly involved the death of more than one victim.
Assault and aggravated assault
Appellate courts have really struggled in applying jury unanimity principles in assault cases. In Dolkart v. State, the defendant became impatient with a slow-riding bicyclist who was blocking her path and ran into him with her car. The bicyclist grabbed her bumper on the way down and was dragged underneath her car.32 The court’s charge allowed the jury to find the defendant guilty of aggravated assault by threat or by bodily injury with the use of a deadly weapon (her car). The court noted that bodily injury assault is a “result of conduct” offense that can be committed intentionally, knowingly, or recklessly and focuses on the result of actual bodily injury. In contrast, assault by threat is a “nature of conduct” offense that can only be committed intentionally or knowingly and focuses on the conduct of “threatening others.” The court also observed that the different types of conduct proscribed by Penal Code §22.01(a) are found in different subsections, include different transitive verbs, and are separated by “or.”33 Therefore, the court held that the legislature intended assault by threat and assault by bodily injury to be different statutory offenses, not just different manner and means of committing an assault.34 Because the charge allowed the jury to convict the defendant without requiring it to unanimously agree whether she committed aggravated assault by bodily injury or aggravated assault by threat, the charge was erroneous.35
However, the courts have held that jurors do not need to be unanimous about the means that the defendant uses to commit a particular bodily injury assault or assault by threat. The Third Court of Appeals held that the jury need not be unanimous about whether the defendant smothered the victim with a plastic bag, strangled her with a piece of a plastic bag, or smothered her by putting his hand over her mouth and nose. These violent acts all fell under the same statutory subsection.36
On the other hand, in Landrian v. State, the First Court of Appeals held that a defendant was denied the right to a unanimous jury verdict where the charge allowed the jury to convict him of aggravated assault without unanimously determining whether he intentionally or knowingly caused bodily injury with a deadly weapon or recklessly caused serious bodily injury.37 The defendant threw a broken bottle or smashed a bottle, injuring the victim and causing him to lose his left eye. The Houston court held that there are at least three separate and distinct offenses of aggravated assault and the jury must be unanimous about which of these offenses the defendant committed.38 The two statutory subsections at issue—Penal Code §22.02(a)(1) and (2)—have different direct objects (serious bodily injury vs. bodily injury). The court concluded that they were distinct criminal acts about which the jury must be unanimous.39
The Court of Criminal Appeals recently overturned the Houston court’s decision.40 The high court focused the eighth-grade grammar lens on the aggravated assault statute to identify the subject (“the defendant”), the verb (“causes”), and the direct object (“bodily injury”). These are the elements about which the jury must be unanimous in this result-oriented offense. The court said that the precise act committed by the defendant is “inconsequential.” Further, the jury need not be unanimous about the culpable mental state (intentional, knowing, or reckless). And because serious bodily injury is always inflicted with a deadly weapon, the jury need not be unanimous about the aggravating factors (causing bodily injury with a deadly weapon or causing serious bodily injury).41 In either case, it “is still the same single criminal act and still the same single bodily injury to the victim.”42 Although the court was unified in its result, some judges disagreed about aspects of the court’s reasoning. Judge Price’s concurring opinion warns that, under different facts, a jury unanimity problem could occur.43
Injury to a child
The Court of Criminal Appeals has already handed down two important opinions applying jury unanimity law to injury to a child cases. In Jefferson v. State, a couple had severely abused their child and failed to obtain medical care for him until the baby finally died from their abuse. Yet it was not totally clear whether the defendant (the father) personally inflicted the fatal blow. The jury charge allowed the jury to convict him if they found that he caused the injury by kicking the child, causing the boy’s head to strike an unknown object, failing to intercede to stop the abuse, or failing to seek necessary medical care for the boy. The court examined the text of the statute and found that its essential element or focus was the result of the defendant’s conduct (in this case, serious bodily injury to a child) and not the possible combinations of conduct that might have caused the result.44 In Judge Cochran’s concurring opinion, she noted that the active verb in the statute was “causes,” which requires a direct object (“serious bodily injury”). She explained that this combination of verb and direct object creates the actus reus of the offense about which the jury must be unanimous.45 The jury does not have to agree about whether the defendant caused the injury to the child by a particular act/omission, just that he caused the injury.46
Accordingly, in Stuhler v. State, the court held that the jury must be unanimous about the different results of the injury to the child (i.e., “serious bodily injury,” “serious mental deficiency, impairment, or injury,” or plain “bodily injury”).47 In Stuhler, the defendant, who returned home tired from her morning paper route each day, repeatedly duct-taped her 3-year-old stepson to the toilet seat for hours on end. The evidence showed the little boy was seriously traumatized and suffered from severe constipation. The appellate court reversed her conviction. The court held that the jury charge impermissibly allowed the jurors to find Stuhler guilty without necessarily agreeing whether she caused serious bodily injury or serious mental injury.48
Reversals on jury unanimity grounds continue to be a problem in child sexual abuse cases. In Pizzo v. State, the indictment alleged that the defendant touched the child victim’s genitals and breasts, and the evidence at trial showed that he had touched both the genitals and breasts of the child.49 The jury charge allowed the jurors to convict him of indecency if he touched the child’s genitals or breasts. The Court of Criminal Appeals parsed the indecency with a child statute, Penal Code §21.11, according to the rules of grammar. The court observed that the main verb is “commits” and the direct object is “offense,” referring to the subsequent direct object, “sexual contact.” The court found that the specific conduct was the focus of the definition of “sexual contact” (e.g., touching the anus, touching the breast, or touching the genitals with the required mental state). This was the element about which the jury must be unanimous, yet the Pizzo jury charge did not ensure such unanimity. The court found error and remanded for a harm analysis.50 On remand, the Corpus Christi Court of Appeals held that the error was harmful and the defendant received a new trial.51
Failure to stop and render aid
In a case handed down this October, the Court of Criminal Appeals held that various statutory methods for committing “failure to stop and render aid” (Transportation Code §550.021) do not constitute separate offenses but are merely alternate means of committing the same offense.52 The majority determined that “failure to stop and render aid” is a “circumstances surrounding the conduct” offense because what makes the conduct unlawful is that it was done under certain circumstances. Therefore, the gravamen of the offense is the occurrence of a wreck under the prescribed circumstances. “Failing to stop,” “failing to return,” and “failing to remain” are simply alternate manner and means of committing the same offense.53 Judge Cochran wrote separately to explain that, had the majority clearly applied eighth-grade grammar rules to this statute, it would have reached the same result. The legislature used a single verb phrase within a single subsection of the statute (subsection (c)) to create a single criminal offense (failing to stop or comply with the statutory requirements). The conduct set out in subsections (a)(1), (a)(2), (a)(3), and (b) simply defines the “requirements” with which the person must comply.54
Resisting arrest, resisting search, and resisting transport under Penal Code §38.03 are merely three means by which a defendant commits the offense of preventing or obstructing a police officer’s completion of his duties. The jury does not have to be unanimous about these methods.55 Also, the jury is not required to agree unanimously on the specific component of self-defense it is rejecting.56 Aggravated kidnapping is a result-oriented offense. The allowable unit of prosecution is the abduction of a single victim and the statutory aggravating factors are merely manner and means.57 In addition, in a DWI case, the jury does not have to be unanimous about which way they think the defendant is intoxicated under the definitions of “intoxicated” contained in Penal Code §49.01. These types of intoxication are not separate offenses or even manner and means. They are simply ways of showing evidentiary proof of the element of intoxication.58
Electing a sex act
Texas appellate courts have long held that, if more than one sexual act is shown by the evidence that matches the description under a single count in the indictment, upon a defense motion the State must elect the particular incident (“transaction”) it will rely on for conviction.59 Originally these cases were based on the defendant’s right to notice, but recently the courts have tied these cases into the law of jury unanimity.60
Before the State rests its case-in-chief, the trial court has discretion to direct the State to make the election. Once the State rests, upon a timely request by the defendant, the trial court must order the State to make the election, and failure to do so constitutes error.61 Absent a motion by the defendant, however, the State is not required to make such an election.62 Once the State elects the sexual act it will rely on for conviction, the defendant is entitled to an instruction telling the jury to consider only the elected act in deciding guilt. The instruction should limit the jury’s consideration of the other (now extraneous) sexual acts to the purposes for which they were admitted.63
There is an exception to the rule requiring election. The State need not elect where several acts of intercourse were committed by one continuous act of force and threats and were part of the same criminal transaction.64 For example, the Court of Criminal Appeals held that the State was not required to elect a sex act in a case in which the defendant met the victim at a nightclub and then raped her at knife and gun point twice within a two-hour period.65 This exception has proved to have very limited applicability; it does not apply where the victim was molested over a period of months or years, even if the defendant continued to threaten the victim.66
Although the election requirement is mandatory, failure to properly elect may be harmless under some circumstances, for example, where the testimony at trial focused on one offense and the others were simply mentioned in passing.67 Also, failure to elect a sexual act may be found harmless where the victim is particularly young and does not distinguish in her testimony among the many offenses. For instance, in Dixon v. State the child victim (the defendant’s 6-year-old niece) testified that the abuse occurred 100 times. A gynecological examination of the little girl showed serious damage to her hymen and the beginnings of genital warts.68 The Court of Criminal Appeals held that the error in not requiring an election did not harm the defendant because the only distinction the victim made between the 100 incidents was that one occurred during the day.69
The new continuous sexual abuse of a child statute (Penal Code §21.02) may help alleviate jury unanimity problems in child sex abuse cases by allowing prosecutions for a continuing pattern of sexual abuse of a particular victim over the course of months or years. This statute provides that “members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed.” The statute requires that the “jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.”70
What if the defense does not object?
The defendant’s failure to object to jury unanimity error does not waive error, but it does affect the analysis used by the court. This area of the law is so confusing that it confounds prosecutors, trial judges, and defense attorneys alike. As a result, jury unanimity errors often pass through a trial undetected, encountering no objection. Prosecutors may breathe a sigh of relief seeing no objection to the charge, yet that sigh of relief may be premature. Even when a defendant urges jury charge error for the first time on appeal, he is not out of luck if he can show “egregious harm.”71 “Egregious harm” means that the error affects “the very basis of the case,” deprives the defendant of a “valuable right,” or “vitally affects a defensive theory.”72 If the appellate court decides that the jury charge error does one of those three things, the case will be reversed despite the fact that the defendant may not have objected to the charge.73 In fact, even if defense counsel affirmatively stated that he had “no objection” to the charge, the defendant can still obtain a reversal if the court decides there is egregious harm.74
In assessing harm, the appellate court will look at the whole trial, especially any questions asked by the jury and the State’s jury arguments. Neither party bears a burden of proof.75 If the State has made a mix-and-match jury argument contending that the jurors need not all agree on which one of the disjunctively-charged acts the defendant committed, it can contribute to finding of egregious error. This is what this “mix-and-match” jury argument looks like:
The important thing with this is that if three of you who end up sitting on the jury panel feel like he stole the credit card and used it, six of you think that he received it, and three of you think he presented it, it doesn’t matter which one you think he did. It can be a mix and match, whichever one you believe.76
A mix-and-match jury argument like this one compounds the jury-charge error because the prosecutor has effectively informed the jurors that they need not be unanimous.77
However, jury unanimity errors have occasionally been found to be harmless. For example, in Martinez v. State (a court of appeals case unrelated the Martinez decision mentioned earlier), although the trial court erred in allowing a conviction upon a disjunctive finding between two separate offenses (contact with sexual organ or anus), the appellate court found that the error was harmless.78 The defensive theory was that the charges were completely baseless. The First Court of Appeals explained that a juror would either have found that the defendant committed the aggravated sexual assaults or that he had not sexually assaulted the complainant at all. There was simply no reason for any individual juror to differ on whether defendant had vaginal or anal contact with the complainant.79
Fixing the problem
In an ideal world, penal statutes would be written clearly, and it would be easy to tell a distinct offense from mere manner and means. Every criminal act alleged in an indictment would be contained in a separate count, and only true manner and means would be alleged in paragraphs.80 But in the real world, you may not realize your indictment has a potential unanimity problem until after trial starts or even until the charge conference. What can you do to protect your verdict?
It is important to examine the indictment in advance of trial to determine if each count alleges a single, distinct offense and that all paragraphs are truly manner and means. If you find a problem, the indictment could possibly be amended with adequate notice to the defendant in compliance with Texas Code of Criminal Procedure Article 28.10. Prosecutors should be prepared to allow the defense 10 days to respond to the amended indictment and to explain to the court why the change does not charge the defendant with an additional or different offense under Article 28.10.
If the indictment cannot be amended, then prosecutors must take steps to ensure that the jury verdict will be unanimous. In Ngo, the Court of Criminal Appeals noted, “The error here is not in submitting the three separate offenses ‘in the disjunctive.’ The error is in failing to instruct the jury that it must be unanimous in deciding which one (or more) of the three disjunctively submitted offenses it found appellant committed.”81 Thus, the court left open the possibility that a jury charge could contain multiple distinct offenses separated by “or,” so long as the charge clearly instructed the jurors that they must unanimously find that the defendant committed at least one of the enumerated offenses.
How should this “unanimity instruction” be phrased? Judge Cochran in Ngo explained that, if each of the application paragraphs submitted to the jury had included “just one additional word: ‘unanimously,’” all 12 jurors would have known that they had to unanimously agree on at least one specific paragraph, and no error would have occurred.82 She suggested introducing each application paragraph with the following phrase: “If you unanimously find from the evidence beyond a reasonable doubt …”83 Conversely, a boilerplate statement in the charge telling the jurors that their verdict must be unanimous usually will not cure a jury unanimity problem.84
The Court of Criminal Appeals has endorsed another possible solution when addressing the grand jury screening issue. When indictment paragraphs appear to allege acts that are really distinct offenses, the trial court can provide separate application paragraphs—and corresponding separate verdict forms—ensuring that the jurors render a unanimous verdict for each criminal act alleged in the indictment. Then, after the jury renders its verdict(s), the trial court should check to see if there is more than one guilty verdict for conduct alleged in a single count of the indictment. If so, the trial court should retain the verdict for the most serious offense and strike or refuse to accept the other convictions arising from the same count.85 If you follow this approach but the trial court does not appropriately strike the extra convictions, you may lose some of the convictions on appeal, but you should not suffer a full reversal.
Alternatively, after the close of evidence, the State can waive or abandon some of the conduct alleged in the indictment, electing to proceed on only one criminal act/paragraph (and one verdict form) per count.86 The negative aspect of this approach, of course, is that the prosecution may not know what evidence the jury found most compelling. The State might end up with a not-guilty verdict when the jury was ready to convict the defendant for an indicted act that was never presented to them.
In addition, in the event that the evidence at trial reveals that the defendant committed a particular sexual act more than one time that matches a single allegation in the indictment (e.g., aggravated sexual assault by causing the penetration of the victim’s sexual organ), the defense may move for an election. If the defense so moves, after the State rests, the State must elect the particular incident it will rely on for conviction. This election must be communicated to the jury as clearly as possible under the circumstances. Admittedly, this can be difficult when the victim is a very young child.
Whichever approach prosecutors take, please proceed with caution. The potential for reversals or loss of convictions even without any defense objection shows that this is an area in which it pays to do some research. Good luck! ✤
1 Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005).
2 Francis v. State, 36 S.W.3d 121, 124-25 (Tex. Crim. App. 2000) (op. on reh’g).
3 Martinez v. State, 225 S.W.3d 550 (Tex. Crim. App. 2007).
4 See Tex. Code Crim. Proc. Art. 21.24; Tex. Penal Code §3.01.
5 See Id.; Owens v. State, 96 S.W.3d 668, 673 (Tex. App.—Austin 2003, no pet.); Renfro v. State, 827 S.W.2d 532, 535 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d).
6 See, e.g., Tyson v. State, 172 S.W.3d 172, 177 (Tex. App.—Fort Worth 2005, pet. ref’d); Patterson v. State, 96 S.W.3d 427, 433 (Tex. App.—Austin 2002), aff’d by 152 S.W.3d 88 (Tex. Crim. App. 2004); Gahl v. State, 721 S.W.2d 888, 895 (Tex. App.—Dallas 1986, pet. ref’d).
7 For instance, see Bates v. State, 587 S.W.2d 121, 129 (Tex. Crim. App. 1979) (the CCA upheld a trial court’s refusal to quash an indictment that contained multiple manner and means of committing bribery in one indented section connected by “and’s” because the single paragraph did not allege more than one offense); Hebert v. State, 586 S.W.2d 529, 531 (Tex. Crim App. 1979) (the CCA read the second unlabeled paragraph of Count II as really being an additional count because it charged a separate offense); and Villarreal v. State, 143 Tex. Crim. 298, 158 S.W.2d 490 (Tex. Crim. App. 1941) (the CCA read the first two indented paragraphs of each count of the indictment together to form each count and ignored confusing surplusage, then held that the indictment contained sufficient allegations, when considered as a whole, as to the three principals).
8 Martinez, 225 S.W.3d at 554 (because each “count” alleges a single offense, an indictment cannot authorize more convictions than there are counts).
9 Martinez, 225 S.W.3d at 552; see also Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999) (holding that the separately described conduct in Penal Code §22.021(a)(1)(B) is a separate statutory offense).
10 The State waived two of the eight paragraphs. Id.
11 Id. at 553-554.
12 Id. at 554.
13 See Sledge v. State, 2008 Tex. App. LEXIS 6463 (Tex. App.—Austin Aug. 19, 2008, no pet h.) (pet. to be pending soon) (“appellant’s failure to object to the jury charge is irrelevant because the error did not occur until after the charge was given, the verdicts were returned, and the judgments of conviction were rendered”). See also Fowler v. State, 240 S.W.3d 277 (Tex. App.—Austin 2007, pet. ref’d) (where jury convicted of six offenses on a three-count indictment, appellate court struck three of the convictions even though counsel did not object to the charge on these grounds—appellate court did not even consider the issue of error preservation).
14 See, e.g., Gibson v. State, 2008 Tex. App. LEXIS 4915 (Tex. App.—Texarkana delivered July 2, 2008, no pet. h.) (not designated for publication) (“As a matter of housekeeping, we point out that the two pieces of conduct alleged in the indictment are more accurately termed ‘counts’ as opposed to ‘paragraphs’”); Hernandez v. State, 2008 Tex. App. LEXIS 4231 (Tex. App.—El Paso delivered June 12, 2008, no pet. h.) (not designated for publication) (“Although the State lists two ‘counts’ in the indictment, the State was merely describing the alleged methods Appellant used in committing the offense of murder”).
15 Tex. Const. art. V, §13; Tex. Code Crim. Proc. art. 36.29(a).
16 Hisey v. State, 161 S.W.3d 502 (Tex. Crim. App. 2005); Rangel v. State, 199 S.W.3d 523, 540 (Tex. App.—Fort Worth 2006, pet. improvidently granted).
17 See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991), cert. denied, 504 U.S. 958, 112 S. Ct. 2309, 119 L. Ed. 2d 230 (1992); Johnson v. State, 187 S.W.3d 591, 605 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d); Jones v. State, 184 S.W.3d 915, 922 n.6 (Tex. App.—Austin 2006, no pet.).
18 See Ngo, 175 S.W.3d at 747 (the jury must unanimously agree on each “element” of the crime in order to convict but need not agree on all the “underlying brute facts [that] make up a particular element”); Francis, 36 S.W.3d at 125.
19 Francis, 36 S.W.3d at 124-25.
20 See Ngo, 175 S.W.3d at 748; Francis, 36 S.W.3d at 125; Martinez v. State, 190 S.W.3d 254, 259 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (the trial court erred in allowing a conviction upon a disjunctive finding between two separate sexual offenses).
21 Huffman v. State, ___ S.W.3d ___, No. PD-1539-07 (Tex. Crim. App. delivered Oct. 1, 2008).
22 See, e.g., Landrian v. State, ___ S.W.3d___, No. PD-1561-07 (Tex. Crim. App. delivered October 8, 2008).
23 See, e.g., Id; Huffman, No. PD-1539-07; Stuhler v. State, 218 S.W.3d 706, 718-719 (Tex. Crim. App. 2007).
24 Pizzo v. State, 235 S.W.3d 711, 714-715 (Tex. Crim. App. 2007); Jefferson v. State, 189 S.W.3d 305 (Tex. Crim. App. 2006) (Cochran, J., concurring); Ngo, 175 S.W.3d at 745-46, n. 24.
25 Vick, 991 S.W.2d at 833.
26 Huffman, No. PD-1539-07.
27 London v. State, 2008 Tex. App. LEXIS 6995 (Tex. App.—Dallas Sept. 22, 2008, no pet. h.); Yost v. State, 222 S.W.3d 865, 877-78 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d); see also Ngo, 175 S.W.3d at 746, n. 27 (noting that the gravamen of the offense of murder, on which the jury must be unanimous, is causing the death of a person, such as Rasputin; but the jury need not be unanimous on the manner and means—“by poisoning, garroting, shooting, stabbing, or drowning”—of how Prince Yussupov caused Rasputin’s death); Kitchens, 823 S.W.2d at 258 (no unanimity requirement for methods of committing capital murder); Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1987) (op. on reh’g).
28 208 S.W.3d 467 (Tex. Crim. App. 2006).
29 Id. at 467-468.
30 Id. at 469. Similarly, the El Paso Court of Appeals has held that the jury need not be unanimous about which reckless act the defendant committed in a manslaughter prosecution. Rubio v. State, 203 S.W.3d 448 (Tex. App.—El Paso 2006, pet. ref’d).
31 Hisey, 161 S.W.3d at 502-503.
32 Dolkart v. State, 197 S.W.3d 887 (Tex. App.—Dallas 2006, pet. ref’d).
33 Dolkart, 197 S.W.3d at 893.
35 Id. at 893.
36 See Marinos v. State, 186 S.W.3d 167, 175 (Tex. App.—Austin 2006, pet. ref’d) (it was not necessary for the court to require jurors to agree that the appellant used a bag, a piece of a bag, or his hand to inflict the bodily injury, or that it was the bag or his hand that the appellant used or exhibited while making the threat).
37 2007 Tex. App. LEXIS 6290 (Tex. App.—Houston [1st Dist.] Aug. 9, 2007, pet. granted).
38 Id. at *17-18; citing Gonzales v. State, 191 S.W.3d 741 (Tex. App.—Waco, 2006, pet. ref’d).
39 Id.; see also Penal Code §22.01(a)(1).
40 Landrian v. State, ___ S.W.3d___, No. PD-1561-07 (Tex. Crim. App. delivered October 8, 2008).
41 Id.; see also Blount v. State, 257 S.W.3d 712 (Tex. Crim. App. 2008).
43 Id. (Price, J., concurring).
44 Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006).
45 Id. at 315 (Cochran, J., concurring).
46 Id.; see also Villanueva v. State, 227 S.W.3d 744 (Tex. Crim. App. 2007) (the act and omission were simply two means of alleging and/or proving the same offense for double-jeopardy purposes).
47 Stuhler v. State, 218 S.W.3d 706, 718-719 (Tex. Crim. App. 2007).
48 Id. at 719-720.
49 Pizzo, 235 S.W.3d 711.
50 Id. at 718-719. This holding was consistent with the court’s interpretation of Penal Code §22.021 in Vick v. State, 991 S.W.2d 830.
51 Pizzo v. State, 2008 Tex. App. LEXIS 5282 (Tex. App.—Corpus Christi July 17, 2008, no pet. h.) (unpublished); see also Rangel, 199 S.W.3d at 540-541 (the attempted breast-touching, asking the child to touch the defendant’s genitals, and offering the child money so that defendant could touch her “private” were all different offenses and should not have been charged in the disjunctive within the same count); see also Clear v. State, 76 S.W.3d 622, 624 (Tex. App.—Corpus Christi 2002, no pet.) (finding egregious harm to defendant’s right to a unanimous jury verdict when jury charge allowed conviction upon disjunctive submission of three separate sexual assault of a child offenses).
52 Huffman, No. PD-1539-07.
54 Id. (Cochran, J., concurring).
55 Clement v. State, 248 S.W.3d 791, 801 (Tex. App.—Fort Worth 2008, no pet.).
56 Harrod v. State, 203 S.W.3d 622, 628 (Tex. App.—Dallas 2006, no pet.).
57 Gonzales v. State, ___ S.W.3d ___, No. 07-07-0302-CR (Tex. App.—Amarillo delivered October 3, 2008, no pet. h.).
58 See Barbernell v. State, 257 S.W.3d 248 (Tex. Crim. App. 2008) (the definitions of “intoxicated” in Tex. Penal Code §49.01(2) are evidentiary and do not need to be alleged in a charging instrument); see also Fulenwider v. State, 176 S.W.3d 290, 298 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (trial court did not err by charging the jury disjunctively on the means of intoxication); and Bradford v. State, 230 S.W.3d 719, 723 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (appellant fails to demonstrate that jury unanimity is required on DWI as between the loss of mental and physical faculties).
59 See O’Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988); Crosslin v. State, 235 S.W. 905 (Tex. Crim. App. 1921).
60 See O’Neal, 746 S.W.2d at 771-772 (a defendant might find himself without notice as to which of a multitude of acts he might be called upon to defend); and compare Phillips v. State, 193 S.W.3d 904, 910 (Tex. Crim. App. 2006) (forcing State to elect ensures unanimous verdicts).
61 Phillips, 193 S.W.3d at 909 (State has the privilege “to delay election until such stage in the development of the evidence as would give the State an opportunity to intelligently determine upon which transaction it prefers to rely for a conviction”).
62 O’Neal, 746 S.W.2d at 771 n.3; cf. Phillips, 193 S.W.3d at 912 (defendant preserved his right to a unanimous verdict by calling for an election at the close of the all evidence).
63 See Isenhower v. State, 2008 Tex. App. LEXIS 4167 (Tex. App.—Houston [14th Dist.] June 10, 2008, no pet. h.); Rivera v. State, 233 S.W.3d 403, 406 (Tex. App.—Waco 2007, pet. ref’d); Martin v. State, 176 S.W.3d 887, 905 (Tex. App.—Fort Worth 2005, no pet.).
64 O’Neal, 746 S.W.2d at 771.
65 Steele v. State, 523 S.W.2d 685, 686 (Tex. Crim. App. 1975); see also Bethune v. State, 363 S.W.2d 462 (Tex. Crim. App. 1962) (the exception applied where the victim was held by force and raped and forced to commit deviant sex acts several times in one night).
66 See Phillips, 193 S.W.3d at 911 (exception did not apply where complainants were molested at different locations over a period of months or years).
67 See, e.g., O’Neal, 746 S.W.2d at 772 (“By the close of the State’s case, it was clear that the act upon which the State would rely for conviction”).
68 Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006).
69 Id at n. 26.
70 Tex. Penal Code §21.02(d) (2008); see also Acts of May 18, 2007, 80th Leg., R.S., ch. 593, art. 1, § 1.17, 2007 Tex. Gen. Laws 1120, 1127-28.
71 Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994).
72 Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006).
73 See Stuhler v. State, 218 S.W.3d 706, 716 (Tex. Crim. App. 2007) (“We agree with the court of appeals that the application paragraph did violate the appellant’s right to a unanimous jury verdict and hold that this defect would require reversal of the conviction even under an egregious-harm standard of review”).
74 Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004).
75 Warner v. State, 245 S.W.3d 458, 464 (Tex. Crim. App. 2008) (burdens of proof or persuasion have no place in a harm analysis conducted under Almanza).
76 Ngo, 175 S.W.3d at 750.
77 See Clear, 76 S.W.3d at 623-24 (egregious harm found where the prosecutor told the jurors that they didn’t “all have to agree on which manner we’ve proven it to you, as long as we’ve proven one of these”).
78 Martinez, 190 S.W.3d at 261-262.
79 See also De Los Santos v. State, 219 S.W.3d 71, 79 (Tex. App.—San Antonio 2006, no pet.) (“the De Los Santos jury was never told they could return a ‘mix and match’ verdict with some jurors finding De Los Santos guilty of one application paragraph and other jurors finding him guilty of the other application paragraph. There was no affirmative misstatement of the law on jury unanimity in this case”).
80 Actually, in a truly ideal world this would all be a moot point because there would not be any crime!
81 Ngo, 175 S.W.3d at 749; see also Warner, 245 S.W.3d at 464 (“the jury charge is incorrect because it does not make clear that the jury had to find unanimously on at least one statutory offense”).
82 Ngo, 175 S.W.3d at 749, n. 44.
84 See Ngo, 175 S.W.3d at 745 (the word “unanimously” appeared in jury charge only once, in section dealing with selection of jury foreman); Soto v. State, 2008 Tex. App. LEXIS 5654 (Tex. App.-Corpus Christi July 29, 2008, no pet. h.) (“We conclude that the ‘boilerplate’ unanimity instruction in the jury charge was insufficient to mitigate the harm caused by the prosecutor’s confusing and erroneous argument.”).
85 See Martinez, 225 S.W.3d at 555:
When confronted with a single count that contains multiple allegations that are really separate offenses, the trial judge should protect the rights of both parties by submitting the separate allegations to the jury, but in such a way as to ensure that each allegation is decided unanimously. Perhaps the simplest way to do that is to submit separate verdict forms, as was done in the present case. … Once the judge receives the jury’s verdicts, he should perform the task of deciding what judgment is authorized by those verdicts in light of the controlling law, the indictment, and the evidence presented at trial.
86 See De Los Santos, 219 S.W.3d at 78 n. 2 (“The problem created by this jury charge could have been avoided if the court had instructed the jury to reach a separate verdict on each count”).