Emily Johnson-Liu
There are some cases where, in theory, the State could charge the defendant with two, four, 12, or even 20 instances of precisely the same conduct: the defendant who repeatedly molested his step-daughter, the husband who repeatedly hit his wife, or the drug dealer who made multiple trades in a single day.
While prosecutors may have the evidence to support a 12- or 20-count indictment, we exercise prosecutorial restraint and charge fewer counts than we can prove. Or sometimes, we discover during trial that the defendant committed the identical offense sometime before and it was never charged. Or the victim, during an interview, describes the way things usually happened, the pattern that played out many times: “He would do this” or “He would do that.” She recounts how the defendant did this to her “a lot,” and not just on June 3, 2010, as you’ve alleged, but many other times, too. At this point, these other times are not extraneous offenses.1 The “on or about” language in the indictment means that any of these separate instances constitute proof of the charged offense. As long as these separate instances fall within the statute of limitations, they all could constitute the offense for which the defendant is on trial. If the defense wants to, they can force the State to elect: They can make the prosecutors choose on which of these instances we will rely for a conviction.2 But even if the defense does not ask for an election, there is still a potential problem, one that would not be present if the prosecutors were seeking a verdict for every time the defendant committed the offense.
The potential problem is that with evidence of separate crimes, jurors may not all agree on exactly which counts they are convicting the defendant. Sure, they all agree on the bottom line—the defendant committed a sexual assault (or whatever crime the State has alleged), but the jurors may have in mind very different instances, and they may be in sharp dispute about which instances the State proved beyond a reasonable doubt.
Enter Cosio v. State.3 In this recent case, the Court of Criminal Appeals held that a non-unanimous verdict may occur when the State charges an offense and the proof at trial shows the defendant committed that charged offense on multiple—but separate—occasions. Further, the court reaffirmed that even without a defense request for the State to elect, the trial court must still ensure that the jury is unanimous about a particular incident.4 There has to be a special unanimity instruction in the jury charge informing the jury that, in order to convict, jurors must all agree on at least one particular incident.
The jury charge in Cosio was erroneous because it failed to include such an instruction. Cosio had been sexually abusing a girlfriend’s daughter over a number of years. The State charged him with two counts of aggravated sexual assault of a child and two counts of indecency with a child. The victim testified about four different episodes—in the shower, in her mother’s bedroom, on the way to and from a Burger King, and after the defendant showed her pornography. But when the appellate courts tried to match up the trial testimony to the State’s allegations, there was not a one-to-one match. For both aggravated sexual assault counts, the State offered proof of more instances than it had alleged. The victim testified that the defendant made her perform oral sex on him during the episode in her mom’s bedroom and on a different time on the way to Burger King. She also testified that intercourse happened both in her mom’s bedroom and at a different time after the defendant showed her pornography.
For the oral sex allegation, there was evidence of two separate instances of conduct, both of which constituted the specific offense charged. The same was true of the allegation of aggravated sexual assault by intercourse: There was evidence of two distinct instances, both of which would establish the one charged offense. Texas law, the Court of Criminal Appeals explained, requires a unanimous verdict, which means that the jury must “agree upon a single and discrete incident that would constitute the commission of the offense alleged.”5 It was already the law that each act of intercourse is a separate and distinct offense, requiring the State to elect at the close of its case-in-chief on which act it would rely for a conviction, if requested by the defense.6 So Cosio just took this one step further. Where the proof at trial is of multiple instances of intercourse (or other sexual misconduct) for any single allegation, a specific jury instruction is required to eliminate the risk that the jurors would convict without unanimous agreement that any of the incidents occurred.
The general unanimity instruction is not enough
Although Cosio’s jury was given the usual instruction of “Your verdict must be unanimous,” the court found this was not sufficient because jurors could think it required unanimity only about the particular statutory violation the defendant had committed. The court also rejected the argument that Cosio waived his right to the special unanimity instruction by failing to request the State to elect. Although one of the purposes of election is to ensure a unanimous verdict (because it limits the jury’s deliberation to a single incident of the State’s choosing), the court reasoned that “guaranteeing unanimity is ultimately the responsibility of the trial judge because the trial judge must instruct the jury on the law applicable to the case.”7
What should the instruction say?
The court did not propose model language for a special unanimity instruction, but it did state that the instruction should not refer to any specific evidence in the case, presumably to not constitute a comment on the weight of the evidence. The court also stated that the instruction should permit the jury to return a general verdict. Submitting the incidents individually so the jury can return separate verdicts on them would not be permissible, perhaps because to do otherwise would violate the requirement of general verdicts in criminal cases.8 One possible instruction might be something like this:
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.
How does Cosio fit into other Texas unanimity cases?
The holding in Cosio and the requirement of a special unanimity instruction applies to cases where the defendant has committed the identical offense more times than for which the State is seeking a conviction. It applies to the repeated violation of the identical penal code section or subsection in the identical way alleged in the indictment or information. Cosio does not address the more difficult situations where unanimity issues can arise, say, when the jury charge expressly gives the jury a choice of convicting the defendant if he did X or Y. For example, a charge in a capital murder case may authorize a conviction if the jury finds that the defendant committed murder in the course of sexual assault or robbery.9 Juror unanimity about the particular manner and means of committing the single offense of capital murder is not required, and Cosio doesn’t change this.
On the other hand, juror unanimity is required where the alternatives given to a jury are distinct offenses in themselves. In the extreme example, the legislature cannot create a generic umbrella offense called “Crime” and permit some jurors to believe the defendant committed embezzlement, others to believe the defendant committed littering, and still others to believe he committed murder.10 In Texas, the jury cannot convict a defendant for credit card abuse and disagree about whether he stole the credit card, received a stolen credit card, or fraudulently presented a credit card.11 Likewise, in indecency cases, touching the child’s breast is a discrete offense from touching the child’s genitals, even though both constitute a violation of the same penal code subsection.12 As a result, where the evidence shows the defendant touched both the child’s breast and her genitals and the State is seeking only one conviction, the jury charge must instruct the jury to be unanimous about which discrete offense (breast or genitals) the defendant committed.13
Cosio does not help identify in future cases which of these alternatives are merely manner and means of committing one offense and which are multiple offenses that require juror unanimity for a conviction. Cosio presents a much simpler situation. With repeated commission of the same precise conduct separated by months (if not years), it follows that these are necessarily distinct crimes, not merely alternative theories or manners and means of committing the same crime. So where the State seeks only one conviction for these multiple occurrences (one conviction either for the instance of oral sex in the bedroom or for the instance of oral sex on the way to Burger King), the jury charge must instruct jurors to be unanimous about at least one of those occurrences.
What about continuous sexual abuse?
Even where a case involves multiple commissions of the same precise offense, there are three situations where no special unanimity instruction is required. In fact, trouble with the unanimity issue is the whole reason continuous offenses were created! First, if the State’s election has already narrowed the jury’s deliberation to a single incident for each crime charged, there is no danger of a non-unanimous verdict, and thus no special unanimity instruction is needed. Second, if the State has alleged continuous sexual abuse of a young child or continuous violence against the family, non-unanimity is specifically allowed as long as each juror is convinced that the defendant committed the required number of offenses during the relevant time period.14 Third, a special unanimity instruction is not re-quired where the multiple instances of the same crime were committed “by one continuous act of force and threats that are part and parcel of the same criminal transaction.”15 But this exception has a fairly narrow application because in the typical case, repeated instances of the crime are usually separated by more than a few hours and often span months and years.16 In the typical case, where there is proof at trial of more instances of the offense than the State is seeking a conviction for, then the jury should be given a special unanimity instruction.
Is there really any danger of a non-unanimous verdict?
The court in Cosio ultimately decided that while the jury should have been instructed on unanimity as to a particular incident, the error was harmless. In future cases, however, the standard of assessing harm varies, depending on whether and how precisely the defense urges an objection in the trial court. As with all jury charge issues, the failure to object at trial does not preclude appellate review; it just makes the harm standard “egregious” instead of simply “some harm.”17 This is what happened in Cosio, and the Court of Criminal Appeals ultimately found that the lack of a special unanimity instruction did not rise to the level of egregious harm.
But where the defendant raises the issue at trial and references the Texas constitutional requirement for a unanimous verdict, the constitutional harm standard applies, and the conviction must be reversed unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction.18 In most cases, a special unanimity instruction is not going to increase the chances of acquittal or mistrial. Consequently, the best practice is to be aware of the issue and include the instruction in the charge wherever there is proof of more occurrences of the crime than the State has alleged.
Cosio’s confusing part
Cosio appears straightforward until the discussion of counts three and four, involving indecency with a child. As a legal sufficiency matter, the court of appeals held that there was not enough evidence to support two convictions for indecency by touching the victim’s genitals. The victim testified about only one incident where the defendant touched her genitals with his hand: during the shower episode. But as the intermediate court of appeals noticed, every act of intercourse also necessarily constitutes the type of indecency alleged here (touching the victim’s genitals with an unspecified body part).19 But for reasons that are not clear, the court did not then find that the jury could consider one of the acts of intercourse (such as in the bedroom episode) to constitute the missing indecency. It would not have violated double jeopardy for the jury to find one of the acts of intercourse constituted indecency because the State offered proof of two acts of intercourse and needed only one to establish its single aggravated sexual assault of a child (by intercourse) count.20 Thus, it appears that the evidence is actually legally sufficient to support all four counts.
The sufficiency issue was not before the Court of Criminal Appeals, but it does seem to change the analysis. With only one incident alleged for every conviction sought, there is no danger in Count Two, above, that some jurors might believe only the bedroom incident occurred and others believe only the pornography incident occurred. Instead, the danger is that some jurors might believe the bedroom instance was an indecency and the pornography instance was an aggravated assault, and other jurors the exact opposite. And perhaps the right to a unanimous jury verdict does not require agreement to that degree.
The sufficiency issue aside, the Court of Criminal Appeals’ analysis of the remaining indecency count is perplexing and seems to conjure up phantom offenses to warrant use of the special unanimity instruction. If we ignore that intercourse can constitute indecency, there were not multiple instances of indecent touching—indeed the court of appeals had already found one incident too few and reversed for legal insufficiency on one of the indecency counts. But, as both courts reasoned, by virtue of the fact that the greater offense in Count Two (aggravated sexual assault by intercourse) could constitute the lesser offense alleged in Count Three (indecency by touching the child’s genitals), there were actually multiple incidents of indecency, warranting a special unanimity instruction.
This conclusion has complicated matters significantly. For whenever one allegation could be subsumed within another, there arises the potential that the jury could consider proof of the greater (aggravated sexual assault of a child) as a multiple instance of the lesser (indecency). Thus, a special unanimous verdict instruction must be given, even where the State is seeking only one conviction for every offense described by the evidence. Imagine a simple case where the State alleges two counts (aggravated sexual assault of a child by vaginal intercourse and indecency with a child by contacting the victim’s genitals) and the victim testifies to two different incidents: one where the defendant had intercourse with her and another where he touched her genitals with his hand. Even in this straightforward case, where it would seem a special unanimous verdict instruction would not be warranted, Cosio may instruct otherwise. The silver lining is that, in this situation, the defense is highly unlikely to request such an instruction or notice the issue on appeal, and even then, any error is almost always going to be harmless.
Endnotes
1 See Rodriguez v. State, 104 S.W.3d 87, 91 (Tex. Crim. App. 2003); Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996) (defining an extraneous offense as any act of misconduct that is not shown in the charging papers).
2 Once the State rests, the trial court is required to order a requested election; the trial court has discretion to order the State to elect at any time prior to that. O’Neal v. State, 746 S.W.2d 769, 772 (Tex. Crim. App. 1988). For an excellent article on jury unanimity and election before Cosio v. State, read Holly Taylor’s “Counts, paragraphs, and jury unanimity” from the November-December 2008 issue of The Texas Prosecutor, Vol. 38, No. 6 (available online at www.tdcaa.com/node/3504).
3 Cosio v. State, No. PD-1435-10, 2011 WL 4436487 (Tex. Crim. App. Sept. 14, 2011).
4 Cosio, 2011 WL 4436487, at *6 (reaffirming Ngo v. State, 175 S.W.3d 738, 748 (Tex. Crim. App. 2005)).
5 Cosio, 2011 WL 4436487, at *3.
6 O’Neal, 746 S.W.2d at 771.
7 Cosio, 2011 WL 4436487, at *7.
8 See Tex. Code Crim. Proc. art. 37.07(1)(a).
9 Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).
10 Schad v. Arizona, 501 U.S. 624, 633 (1991).
11 Ngo v. State, 175 S.W.3d 738, 747 (Tex. Crim. App. 2005).
12 Francis v. State, 36 S.W.3d 121, 124-25 (Tex. Crim. App. 2000).
13 Id.
14 Tex. Penal Code §21.02(d) (continuous sexual abuse of a young child); §25.11(d)(continuous violence against the family).
15 Phillips v. State, 193 S.W.3d 904, 911 (Tex. Crim. App. 2006) (citing Steele v. State, 523 S.W.2d 685 (Tex. Crim. App. 1975)).
16 Id.
17 Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988).
18 Tex. R. App. P. 44.2(a).
19 Cosio v. State, 318 S.W.3d 917, 921 (Tex. App.—Corpus Christi 2010) (citing Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004)).
20 Williams v. State, 170 Tex.Crim. 593, 594, 342 S.W.2d 581, 582 (1960) (accused cannot complain that he was charged, tried, or convicted for a lesser included offense rather than the higher or greater offense).