### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00042- CR

F elix Sanchez-Saravia, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F MCCULLO CH COUNTY , 452 ND JUDICI AL DISTRICT

NO. 607 5*3, H ONO RAB LE ROB ERT R. H OF MANN, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Fe lix Sanchez-Sara via of the offe nse of sexual assault of

a child and assessed punishment at seven y ear s’ imprisonment. The district co u rt re n d ere d 1 judgme nt on the verdic t and, upon the jury ’s rec ommendation, suspended imposit ion of the sentenc e and plac ed Sanche z-Saravia on c ommunity supervision for a

period of te n y ear s. I n a si ng le i ssue

on appea l, Sanchez-Sara

via asserts that the di strict court erre d in failing to inst ru ct t he jury that it
must ag ree unanimously on a particula r incident of sexual assault that Sanchez-Sara via committed. We will affirm the district cour t’s judgme nt.

BACK GR OUND
I n a thre e-c ount indictment, the State alleg ed that in 2014, Sanche z-Saravia, then a 22-y ear -old Br ady police office r, eng ag ed in sexual intercour se with S.F., then a 16-y ear -old g irl, on

See Tex. P enal Code § 22.011( a)( 2). 1three o cc as i o n s

— o n or about April 1 (count 1), May 1 (count 2), and September 5 (count 3).

Although these were the only dates alleg ed in the indictment, S.F. testified that she and SanchezSaravia had sex approximately two or three times per wee k beg inning in April 2014 and continuing throug h May 2015, by which time she had turned 17 y ear s of ag e. Sanchez-Sara via, who testified 2 in his defe nse, admitted that he had sex with S.F. on one nig ht in Ma y 2015 but de nied having sex with S.F. at any time when she was y oung er than 17. After co n s i dering this and other evidenc e, which we discuss in more detail below, t h e j u ry acquitted Sanchez-Sara via of committing the offe nses alleg ed in counts 1 and 2 of the indictment but found him g uilty of committing the offe nse alleg ed in count 3. The jury assessed punishment at seven y ear s’ imprisonment and rec ommended that Sanchez-Sara

via be place d on community supervision, as noted above. T h e district court rende red judg ment on the ver dict, and this appea l followed.

STANDARD OF REVIEW We revie w claims of jury -cha rg e err or under t h e t wo -pronge d test set out in Almanza v. State

. “Our

first inquiry is w hether the jury char g e contained err or.” “I f err or exis ts, 3 4

we then analy

ze t h e h ar m resulting from the err or.” “I f the err or was prese rved by objection, 5

Sp ec i fi cally , the record reflec ts that S.F. t urned 17 on November 28, 2014. The sex ual- 2 assault statute def

ines a “ child” as a

person y oung er tha

n 17 y ear s of ag e. See id . § 22.011(c) (1). 686 S.W .2d 157, 171 (Tex. Crim. App. 1985) (op. on re h’g ). 3 Price v . State , 457 S.W .3d 437, 440 (Tex. Crim. App. 2015). 4 Id

. 5 2any err or t hat i s not harmless will constitute reve rsible error.” “I f t he error was not p re s erve d by 6 objection, the err or will no t re s u l t in reve rsal of the conviction without a showing of
eg reg ious harm.” 7

ANALYSIS Unanimity instruct ion

I n his sole issue on app ea l , S an chez-S ara via asser ts that the district court err ed in failing t o i n struct the jury that it neede d to ag ree unanimously on a particula r incident of sexual assault that Sanchez-Sara via committed. “Te x as law require s that a jury rea ch a unanimous verdic t about the specific crime that the defe ndant committed.” “I n oth er wo rd s , ‘the jury must be 8 unanimous in finding ever y constituent element of the char g ed offe nse in all criminal case s.’” “This 9

means that the ju ry must ‘ag ree upon a single and discrete incident that would constitute the commission of the offe nse alleg ed.’” 1 0

Id

. 6 Id

. 7 Cosio v. State , 353 S.W .3d 766, 771 (Tex. Crim. App. 2011) (citing Landrian v. State , 8 268 S.W .3d 532, 5 3 5 (T ex . C ri m . App. 2008)); see Hodge v. State , 500 S.W .3d 612, 624 (Tex. App.—Austin 2016, no pet.). Ho d g e , 500 S.W .3d at 624 (quoting Jourdan v. State , 428 S.W .3d 86, 94 (Tex. Crim. 9 App. 2014)).

Id . (quoting Stuhler v. State , 218 S.W .3d 706, 717 (Tex. Crim. App. 2007)). 1 0 3“[N]on-unanimit y may occur when the Sta te char g es one offe nse and prese nts

evidenc e that t h e d ef

endant committ ed the char g ed offense on multipl e but separ ate occasions.” 1 1
“Ea ch of the multipl e incidents individually establishes a differ ent offe nse or unit of prosec ution.” 1 2
“T h e j u d ge’ s char g e, to ensure unanimity , would need to instruct the jury that its verdic t must b e unanimous as to a sing le offe nse or unit of prosec ution among those prese nted.” I n other wor ds, 1 3 “‘the jury must be instructed that it must [agr ee] unanimously [] on one incident of criminal conduct (or unit of prosec ution), based on the evidenc e, that meets all of the essential elements of the single char g ed off

ense be y ond a re asonable doubt.’” 1 4
Her e, the application para g raph of the court’s char g e that corr esponded to count 3 of the indictment instructed the jury as follows:
Now, if y ou find from the evidenc e bey ond a rea sonable doubt that o n o r about the September 5, 2014, in McCulloch County , Texas, the defe ndant, Fe lix SanchezSaravia , did intentionally or knowing ly cause the penetr ation of the sexual org an of J uvenile 1 (a pseudony

m), a child, by defe ndant’s sex ual orga n, then y o u wi l l find the def endant g uilty

of sexual assault of a c hild as char g ed in the indictment.
You are instructed that the time of the offe nse mentioned must be some date anter ior to the prese ntment of the indictment. The indictment in this case was prese nted on Aug ust 24, 2015.

Cos i o , 3 5 3 S .W.3d at 772 (citing Ngo v. State , 175 S.W .3d 738, 747 (Tex. Crim. 1 1 App. 2005)).

Id

. 1 2 Id

. 1 3 Saenz v. State , 451 S.W .3d 388, 390 (Tex. Crim. App. 2014) (quoting Cosio , 353 S.W .3d 1 4 at 776). 4I f y ou do not so find b ey o nd a reasonable doubt, or i f y ou have a reasonable doubt

there of, y ou will find the defe ndant not g uilty .[ ] 1 5

There was nothi ng in the charg e ins t ru ct ing the jury that befor e finding S anche z-Saravia guilty , it
must ag ree unanimously on a single incident of sexual assault, even though the State p re s ented evidenc e that Sanchez-Sara via had eng ag ed in sexual intercour se with S.F. on separ ate but multipl e

occa sions. The Court of C riminal Appea ls has held that the om ission of such an ins truction from the char g e is err oneous beca use it allows for the possibili ty of a non-unanimous verdic t. Consist ent 1 6 with this and other prec edent in simil ar case s, we conclude that the district c ourt err ed in f ailing to instruct the jury

that it must ag ree unanimously on a par ticular incide nt of sexual assault. 1 7

Harm analysi s

Sanchez-Sara

via did not object to the char g e. There fore , “re versa l here is proper only if the re cord indica tes the ex istence of eg reg ious harm.” “Charg e er ror is eg reg iously

harmful if 1 8 it aff ects the very basis of the case , deprive s the defe ndant of a val uable rig ht, or vitally aff ects a

The application para g raphs that corr espond ed t o co u n t s 1 and 2 of the indictment, of 1 5 which Sanche z-Saravia ha d been a cquitted, wer e wor ded similarly

.

See Cosio , 353 S.W .3d at 772–74. 1 6 See id .; Francis v. State , 36 S.W .3d 121, 125 (Tex. Cri m . Ap p . 2 000) (op. on reh’ g ); 1 7 Ashton v. State , 526 S.W .3d 490, 499–500 (Tex. App.—Houston [1st Dist.] 2017, pet. ref ’d); Flores v. State , 513 S.W .3d 146, 155–56 (Tex. App.—Houston [14t h Dist.] 2016, pet. ref ’d); s ee a l

s o Hopkins v. State , N o . 0 3

- 1 6 -00746-CR, 2018 Tex. App. L EXI S 2467, at *22–24 (Tex. App.—Austin Apr. 6, 2018, no pe t. h.) (mem. op., not desig nated f or publication). Villarreal v. State , 453 S.W .3d 429, 433 (Te x . Crim. App. 2015) (citing Almanza , 1 8 686 S.W .2d at 171). 5defe nsive theory .” I n this case , “[i] f the char g e err or cause d the j u ry , i n fa ct, to rende r a 1 9 less-than-una

nimous verdic t on an issue on which unanimity is require d, the char g e err or is
eg reg iously harmful.” “Eg reg ious harm is a ‘hig h and difficult standar d ’ t o meet, and such a 2 0 d et ermination must be ‘borne out by the trial rec ord.’” “I n examining the rec ord to deter m i n e 2 1 whether char g e er

ror ha s resulted in e g reg ious ha rm to a defe ndant, we consider (1) the entirety of the jury char g e, (2) the state of the evidenc e, including the contested issues and weig ht of probative evidenc e, (3) the arg uments of counsel, and (4) any other rele vant information reve aled by the trial

rec ord as a

whole.” The a

naly sis “is fact spe cific a

nd is done on a ‘c ase- by -ca se basis.’” 2 2 2 3
The entirety of the charge The jury char g e conta ined the following g ener al unanimity instructions:

After arg ument of counsel, y ou will retire to the jury room, selec t y our own presiding juror and p roce ed with y our delibera tions. After y ou have rea ched a unanimous verdic t the presiding juror will cer t i fy t h er eto by filling in the appropr iate forms attache d to this charg e and sig ning his or he r name as pre siding juror

.

. . . .

Id

. 1 9 Swearingen v. State , 270 S.W .3d 804, 812 (Tex. App.—Austin 2008, pet. ref’d) (citing 2 0 Ngo , 175 S.W .3d at 750–52).

Villarreal , 453 S.W .3d at 433 (quoting Ree ves v. State , 420 S.W .3d 812, 816 (Tex. Crim. 2 1 App. 2013)).

Id . (citing Almanza , 686 S.W .2d at 171). 2 2 Arrington v. State , 451 S.W .3d 834, 840 (Tex. Crim. App. 2015) (quoting Geli nas v. 2 3 State , 398 S.W .3d 703, 710 (Tex. Crim. App. 2013)). 6I n order to return a verdi ct , each juror must ag ree to that verdic t, but jurors have a

duty to consult eac h other and to delibera te with a view to rea ching unanimous ag ree ment, if that ca

n be done w ithout viol ence to individual judgment.

. . . . After y ou retire to the jury room, y ou are to selec t o ne of y our members as y our presiding juror. I t is the duty of the presiding juror to preside over y our delibera tions, to vote with y ou, and to cer tify y our verdic t by signing the appropr iate verdic t f orm when y ou have una

nimously ag ree d upon a ver dict.

“Ge neric statements re g arding unanimity ,” similar to the above, have be en found in other case s to be “insuffic ient to preve nt a non-unanimous verdic t.” T his is beca use “the jury could have 2 4 understood [ the i nstructions] to mea n t h at they had to be unanimous about t he offense in g ener al, not a par ticular incide nt comprising the offe nse.” 2 5 The jury char g e also c ontained the f ollowing e x trane ous-offe nse instruction:

I n this case e vidence has been introduced to the ef fec t that there a

re a lleg ed ac ts of sexual misconduct betwee n the defen d ant and the complainant, other than those alleg ed in the indictment. T he State has identified the specific instances, if any , on which it is rely ing to substantiate the alleg ations in the indictment. Evidence o f an y other alleg ed acts is not to be considere d unless y ou believe these ac t s we re committed bey ond a re asonable doubt. Wi th reg ard to those other acts, if any , y ou ar e i nstructed that said evidenc e was admitted only for the purpose of showing the state of mind of the defe ndant and the chi l d an d the previous and subsequent rela tionship betwee n the defe ndant and the child, if it does and for no other purpose.

As the State observe s, this instruction likely “nar rowe d and channe led the jury ’s considera tion to the specific dates alleg ed” in eac h count of the indictment, there by reduc ing the risk that the jury would

See, e.g. , Arrington , 451 S.W .3d at 841; Co s i o , 353 S.W .3d at 773–74; Flores , 2 4 513 S.W .3d at 158.

Cosio , 353 S.W .3d at 773. 2 5 7rea ch a non-unanimous verdic t. Neve rtheless, the instruction did not inf orm the jury that it must 2 6
ag ree unanimously on a single incident of sexual a ssault tha t c onstitut ed the char g ed offe nse. Nor

was there any

thing else in the char g e that instructed the jury that it must ag ree unanimously on “the particula r i ncident comprising the offense .” We conclude that the first fac tor weig hs in favor of 2 7 a finding of eg reg ious harm.
State of the evidence “[U]nder this prong of an eg reg ious harm revie w, we look to the state of the evidenc e
to deter mine whether the evidenc e made it more or less likely that the jury char g e cause d appellant
actua l harm.” Sanchez-Sara via place s signific ance on S.F.’s testimony that she had sex with 2 8 Sanchez-Sara

via approximately two o r t h re e times per wee k for sever al months prior to her
sevente enth birthday

. Acc ording to Sanchez-Sara via, this evidenc e made it more likely that the jury did not ag ree unanimously on a single incident of sexual assault. Howeve r, the rec ord also ref lects that the State elicited testimony from S.F. tending to show that, among the many times she claimed
to have had sex with Sanchez-Sara via prior to her sevente enth birth d ay , S .F. reme mbere d cer tain details of thre e occ asions in particular , eac h corr esponding to the dates a lleg ed in the indictment:
Q. Okay

. I have explained to y ou that we have place d cer tain on-or- about dates in the indictment. You and I had talked a

bout that.

See Hodge , 500 S.W .3d at 626 & n.9 (noting that extraneous-off ense instruction in simil ar 2 6 case reduc ed risk of jury

rea ching non-unanimous ver dict as to particula r incident a lleg ed). See Cosio , 353 S.W .3d at 773; see also Arrington , 451 S.W .3d at 841. 2 7 Arrington , 451 S.W .3d at 841. 2 8 8A. Yes.

. . . . Q. We’ve alleg ed on or about April 1st, 2014, based on text s and s o forth.[ ] 2 9 I s it fair to state that y ou and F elix Sanchez were having sex ual i nterc ourse on or about Apr il 1st, 2014? A. Yes. Q. Okay

. There is also an alleg ation of May 1st, 2014, and I think there ’s bee n discussion about try ing to r emember events. A. I t was prom nig ht. Q. Prom night. Okay

. So would it be fair to say that y ou and Fe lix Sanchez had sexual int erc ourse Ma

y 1st, 2014? A. Yes. Q. How does pr om night re late to that? A. He wa s a cop tha t was working prom, and I went over

there afte r. Q. Okay . Did y ou talk to him about it at the prom? A. No. Q. Okay . How did y ou know that it was saf e to g o over the re a fter the prom? A. H e

—

h is c o p li g h t. I w a n t to s a y it w a s h is c o p li g

h t, b u t I d o n ’ t r e me mb e r . [ ] 30 Q. You don’t re member, but y ou don’t have any doubt that y ou— A. Yes.

Numerous text messag es that wer e exchang ed b et wee n S.F. and Sanchez-Sara via, 2 9 beg inning in Apr il 2014, were admitted into evidence

. S.F. testified that she would mee t Sanchez-Saravia at his house to have sex l ate a t night 3 0 and that Sanchez-Sara

via would si gn al to her that it was “saf e” for her to come over by placing a spotlight on the top of his patrol ca r. 9Q. —went over there afte r the prom? A. No.

. . . . Q. I s it fair to say y ou had sexual intercour se with Fe lix Sanchez September 5th, 2014? A. Yes. Q. All rig ht. And how do y ou reme mber that date that it’s an on-or- about date? A. Be cause it was the only home football g ame that y ear . Q. Okay . Home footba ll game. Does it have any thing to do with band? A. Yes. I

was in the ba

nd. Q. Okay

. And how does the meeting wi t h Fe l i x S anche z rela te to the home football g ame? A. I want to say

he wa s may

be ther e, but if not it was his cop lig ht.
Thus, althoug h there was evidenc e tending to show that S.F. and Sanchez-Sara via had sex on

numerous occa sions, the State also prese nted more specific evidenc e of the three occa sions alleg ed in the indictment. Ba sed on this evidenc e, t h e j u ry could have found unanimously that SanchezSaravia had eng ag ed in sexual intercour se with S.F. “on or about” September 5, 2014, as alleg ed in count 3 of the indictment.

We also observe that the defe nsive theory of the case was that Sanchez-Sara via had
eng ag ed in sexual intercour se with S.F. on only one night in May 2015, afte r she had alre ady turned 17 y ear s of ag e, and that he had not had sex with her on any other occa sion. The rec ord ref lects that

10throug hout Sanchez-Sara via’s cross-e x amination of S.F., defe nse co u n s el asked S.F. questions imply ing that she was fabr icating almost all of her sexual history with Sanchez-Sara via, not that she

was mistaken as t o t h e particula r occa sions on which she had eng ag ed in sexual intercour se with him. Thus, the contested issue in the cas e was not the specific date or dates on which SanchezSaravia had alleg edly eng ag ed in sexual i n t ercourse with S.F., but whether Sanchez-Sara via had
eng ag ed in sexual intercour se with S.F. on any date at all prior to her sevent eenth birthday

. The State prese nted evidenc e that he had, and the jury , by its g uilty verdic t in count 3 of the indictment, chose to believe at least some of that evidenc e. I f it had not, the jury would have acquitted SanchezSaravia of all cha rg es. We conclude tha t this factor we ighs a g ainst a finding of eg reg ious harm. 3 1
The argum ents of counsel “Unde r this fac tor, we look to whether any statements made by the State, appellant,

or the court during the trial exacer bated or ameliora ted err or in the char g e.” For example, in Ngo 3 2

v. State , the jury was informed by both the trial court during voir dire and the State during voir dire and in closing arg uments that the jury ’s verdic t need not be unanimous. No such statements wer e 3 3

See Arrington , 451 S

. W

. 3 d at 843–44. Sanchez-Sara via asser ts that beca

use the jury 3 1 acquitted him of counts 1 and 2 of the indictment, “the jury did not wholly believe” either the complainant or the defe ndant and “appe ars to have land ed o n s ome sort of middle g round.” Howeve r, the jury ’s not-g uilty finding s in counts 1 and 2 do not establish that the jury failed to rea ch a unanimous verdic t on count 3. I nstead, as the State observe s, “by reje cting counts 1 and 2, the jury indicated that it was not [persuaded] unanimously [] bey ond a rea sonable doubt that sexual rela tions occur red o n [ o r about] April 1, 2014 or May 1, 2014; but it was [persuaded] unanimously [] that sexual relations did occur on [or about] September 5, 2014.”

Id . at 844. 3 2 175 S.W .3d at 750–51. 3 3 11made in this case . On the contra ry , during voir dire, the district court i n fo rm ed t h e venire that “[t] he verdict of a jury in a criminal case must be unanimous, that is all 12 jurors must ag ree .” I n their opening and cl o s i n g statements, neither the State nor the defe nse discussed the unanimity require ment. Howe v er , in its closing arg ument, the State emphasized the dates alleg ed in the indictment:
So, y es, we ’re looking a t what happened in April, May , and September . Those ar e the dates the State has alleg ed in the I n d i ctment, and we’ ve explained why those dates ha ve bee n alleg ed in this I ndictment.

. . . . [S .F.’ s] testimony is she sat up here and told y ou what happene d in April befor e the meeting with Chief Der

rick. She was clea

r about that. She was c lear about having sex on prom. P ro m i s i n M ay . And she was clea r about sex that happene d in September. Those are the dates tha t the State wants y ou to focus on.

. . . . So for eac h one of those dates—a nd y ou’ll have to ref

er back to Count One here that is April the 1st, Count Two is May the 1st, and Count Three is in September of 2014. Those are the three dates that the State is asking y ou t o go b ac k an d find the Def endant g uilty

of sexual assault of a c hild.

This arg ument ameliora ted the char g e err or by draw ing the jury ’s attention to the particula r incidents of sexual assault on which the jury ’s verdic t neede d to be unanimous. We conclude that this fac tor weig hs ag ainst a finding of eg reg ious harm.
Any oth er relev ant in

form ation r eve aled by the rec ord of the trial as a w hole Finally , the rec ord ref

lects that afte r the jury had conclude d its d el i bera tions on g uilt / i nnocenc e, the f

ollowing oc curr ed:

12[The court]: Thank y o u . P l ea s e b e s ea ted. For the rec ord, please let the rec ord ref

lect that the jury is back in the courtroom at this time, that Counsel and the Def en d an t are prese nt as well. [J ury fore man], my understanding is that the jury has rea ched a ver dict in all three c ounts in thi s case ; is that corre ct? [J ury fore man]: Yes, sir. [The court]: Al l ri gh t

. And is the verdic t that y o u re ac h ed i n al l t h re e

counts unanimous? [J ury fore man]: Yes, sir.

There is nothing in the rec ord to sug g est that, contra ry to the fore man’s repr esenta tion, the jury was unable to rea ch a unanimous verdic t. We con cl u d e that this fac tor weig hs ag ainst a finding of
eg reg ious harm.

I n summary , o f the four fac tors, only the first weig hs in favor of a finding of
eg reg ious harm, and the other three fac tors weig h aga inst such a finding

. Acc ording ly , on this

rec ord, we cannot conclude that Sanchez-Sara via suffe red any

thing more than theore tical harm from the cha rg e er ror. We overrule Sanchez-Sara via’s sole issue on a

ppeal.

CONCLUSION We affir m the district court’s judg ment of convic tion.

_________________________________________ Bob Pembe rton, J ustice

13Be fore Chief J ustice Rose, Jus tices Pemberton a nd Goodwin Affir med Filed: June 20, 2018 Do Not Publish

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