Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-16-00540-CR

Mark MEDEL,

Appellant

v.

The STATE of Texas,

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 2014CR8952A

Honorable Kevin M. O’Connell, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice

Rebeca C. Martinez, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: February 28, 2018

AFFIRMED AS REFORMED

Mark Medel was convicted by a jury of injury to a child causing bodily injury. Medel 

presents three issues on appeal contending: (1) the trial court erred in failing to instruct the jury 

that it could not return a verdict unless it unanimously agreed as to each separate offense in the 

charge; (2) the trial court erred in failing to grant Medel’s motion to require the State to elect 

between the indicted offense of injury to a child causing serious bodily injury and the lesserincluded offense of injury to a child causing bodily injury; and (3) the State’s argument regarding 

unanimity confused, misled, and prejudiced the jury. We overrule Medel’s issues; however, we 
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reform the judgment to accurately reflect the offense for which Medel was convicted and the 

statute for that offense. We affirm the trial court’s judgment as reformed.

BACKGROUND

Medel was charged in a two count indictment with injury to a child causing serious bodily 

injury and injury to a child causing serious bodily injury by omission. The State waived the second 

count and proceeded to trial only on the first count.

During trial, expert witnesses presented conflicting testimony with regard to whether the 

child’s injuries rose to the level of serious bodily injury. Given the conflicting testimony, the State 

requested the trial court include the lesser-included offense of injury to a child causing bodily 

injury in the jury charge. The trial court granted the request, and the jury found Medel guilty of 

the lesser-included offense. Medel appeals.

JURY UNANIMITY

In his first issue, Medel contends the trial court erred in failing to instruct the jury that it 

could not return a verdict unless it unanimously agreed as to each separate offense in the charge. 

In his brief, Medel asserts, “Appellant contends that when two separate result-oriented offenses 

are listed in a jury charge and each offense alleges the same manner and means the Court’s charge 

should contain specific rather than general unanimity instructions charging the jury that it must 

reach a unanimous verdict as to each offense alleged.” Medal further argues the “inclusion of the 

two easily confused Injury to a Child offenses in the jury’s charge necessitated a specific unanimity 

instruction for each separate and distinct offense alleged.”

In analyzing jury-charge issues, we must first determine whether error exists. Ngo v. State, 

175 S.W.3d 738, 743 (Tex. Crim. App. 2005). “Then, if we find error, we analyze that error for 

harm.” Id.
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“[J]uror unanimity is required in felony cases by the Texas Constitution and in all criminal 

trials by state statutes.” Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011). As a result, 

the trial court “is obligated to submit a charge that does not allow for the possibility of a nonunanimous verdict.” Cosio v. State, 353 S.W.3d 766, 776 (Tex. Crim. App. 2011).

In this case, the jury charge instructed the jury as follows:

IV.

Now, if you believe from the evidence beyond a reasonable doubt that on 

or about the 4th Day of May, 2014, in Bexar County, Texas, the defendant, Mark 

Medel, did intentionally or knowingly cause serious bodily injury to [C.C.], a child 

who was fourteen (14) years of age or younger, by striking [C.C.] with the hand of 

Mark Medel, or striking [C.C.] with a broom, or striking [C.C.] with a belt, or 

striking [C.C.] with an object unknown to the grand jury, or striking [C.C.] against 

an object unknown to the grand jury, or burning [C.C.] with a lighter, or burning 

[C.C.] with an object unknown to the grand jury, or grabbing,squeezing, or twisting 

the genitals of [C.C.], then you will find the defendant guilty of injury to a child as 

charged in the indictment.

If you do not so believe, or if you have a reasonable doubt thereof, or if you 

are unable to agree, you will next consider whether the defendant is guilty of the 

lesser included offense of injury to a child causing bodily injury.

V.

Now, if you believe from the evidence beyond a reasonable doubt that on 

or about the 4th Day of May, 2014, in Bexar County, Texas, the defendant, Mark 

Medel, did intentionally or knowingly cause bodily injury to [C.C.], a child who 

was fourteen (14) years of age or younger, by striking [C.C.] with the hand of Mark 

Medel, or striking [C.C.] with a broom, or striking [C.C.] with a belt, or striking 

[C.C.] with an object unknown to the grand jury, or striking [C.C.] against an object 

unknown to the grand jury, or burning [C.C.] with a lighter, or burning [C.C.] with 

an object unknown to the grand jury, or grabbing, squeezing, or twisting the genitals 

of [C.C.], then you will find the defendant guilty of the lesser included offense of 

injury to a child causing bodily injury.

If you do not so believe, or if you have a reasonable doubt thereof, you will 

find the defendant not guilty.

(emphasis added). The jury was also instructed as follows:

After you have retired to your jury room, you should select one of your 

members as your “presiding juror.” It is his or her duty to preside at your 

deliberations, vote with you and, when you have unanimously agreed upon a 

verdict, to certify your verdict by signing the same as “presiding juror.”
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We hold the trial court did not err in submitting the jury charge because it did “not allow 

for the possibility of a non-unanimous verdict.” Cosio, 353 S.W.3d at 776. The jury was instructed 

that it was required to unanimously agree upon a verdict. The jury also was instructed not to 

consider the lesser-included offense unless the jury was unable to agree on whether Medel 

committed the charged offense of injury to a child causing serious bodily injury. Accordingly, the 

jury was instructed to consider the lesser-included offense only if it could not unanimously agree 

on the charged offense, and, if the jury considered the lesser-included offense, it was instructed its 

decision as to that offense had to be unanimous. Medel’s first issue is overruled.

ELECTION BY THE STATE

In his second issue, Medel contends the trial court erred in not requiring the State to elect 

between the indicted offense of injury to a child causing serious bodily injury and the lesserincluded offense of injury to a child causing bodily injury. We disagree.

When the evidence at trial shows that only one offense was committed, but the evidence 

could prove either the charged offense or a lesser-included offense, the State must either: (1) elect 

which offense upon which it will proceed; or (2) have the lesser-included offense submitted as an 

alternative to the charged offense in the jury charge. Ochoa v. State, 982 S.W.2d 904, 908 (Tex. 

Crim. App. 1998). Because the State chose to have the lesser-included offense of injury to a child 

causing bodily injury submitted in the charge as an alternative to the charged offense of injury to 

a child causing serious bodily injury, the State was not required to elect to proceed on only one 

offense. Id. Therefore, Medel’s second issue is overruled.

JURY ARGUMENT

In his final issue, Medel contends a portion of the State’s argument at the close of the guiltinnocence phase of trial “confused, mislead and prejudiced the jury into believing it could convict 
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even if the jury was not unanimous as to each separate count in the charge.” Specifically, Medel 

complains about the following portion of the State’s argument:

Now in the charge there’s a specific sentence that goes through the different 

ways he was struck and the injuries that were caused. Ladies and gentlemen, you 

don’t have to agree to all of these different types. Specifically it says, or in the 

charge. That means you don’t have to agree. You could think it happened by a 

belt. You could think it happened by a broom. It specifically says an object 

unknown to the grand jury. Whatever blunt object as Doctor Lukifer described 

could have caused this injury and you believe it. That’s why you can — five of you 

could agree to one way another five and two more to another way. You still can 

find him guilty if you believe it beyond a reasonable doubt.

First, we note Medel did not object to the jury argument, so his complaint is waived. 

Hernandez v. State, No. PD-1389-16, 2018 WL 357612, at *3 (Tex. Crim. App. Jan. 10, 2018); 

Orcasitas v. State, 511 S.W.3d 213, 220 (Tex. App.—San Antonio 2015, no pet.). Even if the 

complaint had been preserved, however, we agree with the State that the argument was a correct 

statement of the law. See Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006) (holding 

unanimity regarding manner or means of committing offense not required where “focus of the 

statute is the result of the defendant’s conduct (in this case, serious bodily injury to a child) and 

not the possible combinations of conduct that cause the result”). Medel’s third issue is overruled.

REFORMATION OF JUDGMENT

In its brief, the State notes the judgment erroneously reflects the offense for which Medel 

was convicted as “INJURY TO CHILD-SBI-INTENT/KNO.” We also note the judgment 

erroneously reflects the statute for the offense is section 22.04(A)(1) of the Texas Penal Code.

Texas Rule of Appellate Procedure 43.2(b) gives an appellate court the authority to modify 

a trial court’s judgment and affirm it as modified. TEX. R. APP. P. 43.2(b). “Where [the appellate 

court] has the necessary data and evidence before it for reformation, the judgment and sentence 

may be reformed on appeal.” Knight v. State, 581 S.W.2d 692, 694 (Tex. Crim. App. 1979). 

Accordingly, we reform the trial court’s judgment to reflect that Medel was convicted of the 
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offense of injury to a child causing bodily injury under section 22.04(a)(3) of the Texas Penal 

Code.

CONCLUSION

The trial court’s judgment is affirmed as reformed.

Karen Angelini, Justice

DO NOT PUBLISH