## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 18

- 00057

- CR

___________________________

On Appeal from the 89th District Court Wichita County, Texas Trial Court No. 59,484

- C
Before Gabriel, Kerr, and Bassel, JJ. Memorandum Opinion by Justice Bassel 

### J UAN 

### A NTONIO 

### R ODRIGUEZ 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. Introduction A jury found Appellant Juan Antonio Rodrig uez guilty of two counts of aggravated sexual assault of a child under fourteen years of age and of one count of
sexual assault of a child

. See Tex. Penal Code Ann. §§ 22.011 (a)(2)(A) , 22.021 (a)(1)(B) (i) , (a)(2)(B)

. The jury assessed Rodriguez’ s punishment at life imprisonment and a $10,000 fine for each count of aggravated sexual assault o f a child and at twenty years’ confinement and a $10,000 fine for the single count of sexual
assault of a child

. The trial court sentenced Rodriguez in accordance with the jury’s
recommendations and ordered the three sentences to run consecutively. In a single point, Rodriguez challenges only his convictions for aggravated sexual assault of a child, 1 arguing that the trial court erred by failing to require the State to make an
election between the two counts. Because we hold that the trial court did not err by failing to require the State to make an election between the two counts and because we hold that the erroneous unanimity instruction in the jury charge did not cause Rodriguez egregious harm, w e affirm.

1 During his opening statement and in his closing argument , Rodriguez’s counsel specifically stated that Rodriguez was not contest ing the evidence showing that he was guilty of the single count of sexual assault of a child

.3 II. Brief Background 2 Rodriguez began sexuall y assaulting his niece, Vicky, 3 when she was in the second or third grade and lived at her grandparents’ house (Rodriguez’s parents’
house where Rod riguez also lived off and on). After th e first incident, Vicky made an
outcry to her grandmother, but “it j ust went in one ear and out the other.” Rodriguez continued to sexually assault Vicky “every day. ” When Vicky was in junior high, she
told her father that his brother

— Rodriguez

— came into her room every night and had sex with her, but even after her fathe r yelled at Rodriguez, the sexual assaults did not
stop. Vicky further testified that her grandmother told her aunt that Rodriguez was sexually abusing her but that no one rep orted the abuse to the police. Rodriguez continued to sexually assault Vicky

— wi th the exception of when she was in fourth grade through sixth grade and lived with her parents

— until she was fifteen years old and became pregnant with his daughter. Vicky made her outcry when she was twenty

- one years old. At the time of the trial, Vick y was twenty

- four years old, and
her dau ght er was eight years old.

2 Because Rodriguez has not raised a sufficiency challenge, we set forth only a brief factual background here and will set forth additional facts as necessary and relevant for disposi tion of this appeal within our analyses. See Tex. R. App . P. 47.1.

3 We use a pseudonym to refer to the complainant. See Tex. R. App. P. 9.10(a)(3); McClendon v. State , 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).4 I I I. Election Between Counts Was Not Required In his sole point, Rodriguez argues that the trial court erred by failing to require
the State to make an elec tion between counts 1 and 2, the re by allowing both counts to be submitted to the jury. When the State wishes to charge multiple offenses in a single indictment, it is required by statute to set out each separate offense in a separate “count.” See Tex.
Code Crim. Proc. Ann. art . 21.24(a)

. In such cases, the State is not required to elect
between counts

. See Owens v. State , 96 S.W.3d 668, 672 (Tex. App.

— Austin 2003, no pet.) ; see also Halliday v. State , No. 05

- 17

- 00233

- CR, 2018 WL 2749644, at *2 (Tex. App.

— Dallas May 31, 2018, no pet.) ( mem. op., not designated for publication)

. Instead, each count may be submitted to the jury because those who commit multiple discrete assaults against the same victim are liable for separate prosecution and punishment for every instance of such criminal misconduct. See Owens , 96 S.W.3d at
672 ; see also Halliday , 2018 WL 2749644, at *2

. Conversely, when one particular act of sexual assault is alleged in the indictment and more than one incident of that same act of sexual assault is shown by the evidence, “the State must elect the act upon which it would rely for conviction.”
See Owings v. State , 541 S.W.3d 144 , 150 (Tex. Crim. App. 2017 ). Once the State rests its case in chief, upon a timely request by the defense, the trial court must order the
State t o make its election. Id.5 The indi ctment in this case clearly enumerated two separate counts of aggravated sexual assault of a child; t he only difference in the two counts was the date of the alleged offenses. 4 During the charge conference , Rodriguez obje cted to the
trial court ’s proposed charge that submitted two separate counts of aggravated sexual
assault of a child to the jury, arguing that “ there was only one detailed explanation of
one incident and [that] the rest were just general explanations .” Ro driguez further argued that because no particular dates or time s had been prove n , “ I think that

. . . creates a double jeopardy problem [,] . . . and I think the State should be on election

4 Counts 1 and 2 from the indictment are as follows: [COU NT 1 ] The Grand Jury of Wichita County, State of Texas, duly organized at the JULY term, A.D. 2017, of the 30 th District Court of said county, in said court at said term, does present that JUAN ANTONIO RODRIGUEZ, hereinafter called defendant, on or about the 01 st day of October , A.D. 2004, in said county and state did then and there intentionally or knowingly cause the penetration of the sexual organ of Pseudonym 14

- 110192, a child who was then and there younger than 14 years of age, by defendant’s sexual organ. COUNT 2 The Grand Jury of Wichita County, State of Texas, duly organized at the JULY term, A.D. 2017, of the 30 th District Court of said county, in said court at said term, does present that JUAN ANTONIO RODRIGUEZ, hereinafter called defendant, on or about the 01 st day of April, A.D. 2005, in said county and state did then and there intentionally or knowingly cause the penetration of the sexual organ of Pseudonym 14

- 110192, a child who was then and there younger than 14 years of age , by defendant’s sexual organ.6 and have to elect to which count they can proceed on. ” [Emphasis a dded.] The State responded, Your Honor, the victim testified that her uncle had sex with her at least 20 times and that was sexual intercourse, his sexual organ penetrated her sexual organ. And she described that as happening almost every single day. An d so the State is entitled to allege separate offenses for each time he had sexual intercourse with her, each one is a sep arate one. The trial court o verruled Rodriguez’s objection. Here, Rodriguez did not request the State to elect a particular act for e ach count of aggra vated sexual assault of a child but instead requested the State to elect
between the two counts. B ecause the indictment pleaded two separate counts, the State was not required to elect between counts. See Owens , 96 S.W.3d at 673 (holdin g that trial cou r t did not err by authorizing appellant’s conviction on two discrete offenses of aggravated sexual assault) ; see also Halliday , 2018 WL 2749644, at *2 (“[T]he State is not required to elect between counts[,] and each count may be
submitted to the jury)

. See generally Tex. Code Crim. Proc. Ann. art . 21.24(a)

. Rodriguez’s appellate complaint is thus without merit. 5

5 In his brief, Rodriguez relies on three cas es to support his argument. Th ose three cases are inapposite because they do not address an election between counts , which is the objection he made in the trial court and the argument he makes on appeal

. See O’Neal v. State , 746 S.W.2d 769, 771 (Tex. Crim. App. 1988) (stating general rule that where one act of intercourse is alleged in the indictment and more than one act of intercourse is shown by the evidence in a sexual assault trial, the State must elect the act upon whi ch it would rely for conviction); Farr v. State , 140 S.W.3d 895, 898

– 900 (Tex. App.

— Houston [14 th Dist.] 2004) (same), aff’d sub nom. Phillips v. State , 193 S.W.3d 904 (Tex. Crim. App. 2006); Phillips v. State , 130 S.W.3d 343, 3 497 I V . Erroneous Unanimity Instruction Did Not Cause Egregious Harm Although not raised by Rodriguez, the State notes in its brief that the jury charge contains an insuffi cient unanimity instruction. We proceed to analyze this
issue because we must review all alleged jury

- charge error, even if

— as here

— it is not preserved because the trial court has an absolute sua sponte duty to pre pare a jury charge that accurately sets forth the law. See Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); see also Sanchez v. State , 209 S.W.3d 117, 121 (Tex. Crim. App. 2006) (permitting appellate court to review unassigned fundamental jury

- charge error). As explained below in more detail , the charge contained only a general unanimity instruction that failed to alert the jurors that they needed to be unanimous about which incident formed the basis of each of the counts of aggravated sexual assault of
a child. Based on the general unanimity instruction and the evidence showing that there were multiple instances of aggravated sexual assault occurring on unspecif ied
dates , there was the possibility of nonunanimous verdicts. However, b ecause the evidence reflected that there was a first incident (which Vicky testified about in detail)
and almost

- daily incidents thereafter ( for which Vicky did not provide much detail or distinguish between ), there is “no remotely significant risk” of a nonunani mous verdict

. See Owings , 541 S.W.3d at 153. Moreover, after analyzing the Almanza factors,

(Tex. App.

— Houston [14 th Dist.] 2004 ) (op. on reh’g) (same) , aff’d , 193 S.W .3d 904 (Tex. Crim. App. 2006).8 we conclude that the charge error did not cause Rodriguez egregious harm. See Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)

. A. St andard of Review In reviewing a jury charge, we first determine whether error occurred; if not, our analysis ends. Kirsch , 357 S.W.3d at 649

. Unpreserved charge error warrants reversal only when the error resulted in egregious harm. Nava v. State , 415 S. W.3d 289, 298 (Tex. Crim. App. 2013); Almanza , 686 S.W.2d at 171; see Tex. Code Crim. Proc. Ann. art. 36.19 . The appropriate inquiry for egregious harm is fact

- and case

- specific. Gelinas v. State , 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v. St ate , 332 S.W.3d 483, 489 (Tex. Crim. App. 2011)

. In making an egregious

- harm determination, we must consider “the actual degree of harm .

. . in light of the entire jury charge [;] the state of the evidence, including the contested issues and weight of prob ative evidence [;] the argument of
counsel [;] and any other relevant information revealed by the record of the trial as a
whole.” Almanza , 686 S.W.2d at 171. See generally Gelinas , 398 S.W.3d at 708

– 10 (applying Almanza ). Errors that result in egregious harm are those “that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive.” Taylor , 332 S.W.3d at 490 (citing Almanza , 68 6 S.W.2d at 172). The purpose of this review is to illuminate the actual, not just theoretical, harm to the
accused. Almanza , 686 S.W.2d at 174.9 B. Law on Unanimity Instructions
The trial court has a responsibility to instruct the jury on the law applic able to
the case and to submit a charge that does not all ow for the possibility of a

non unanimous verdict even when the State is not required to make an elect ion

. See
Cosio v. State , 353 S.W.3d 766, 776 (Tex. Crim. App. 2011). Nonunanimity may occur
when the State charges a defendant with one offense and presents evidence that he committed the charged offense on multiple but separate occasions. Id. at 772. To

ensure unanimity in this context, the jury must be instructed that it must unanimously
agree on one incident of criminal conduct (or unit of prosecution), based on the evidence, that meets all of the essential elements of the single charged offense beyond
a reasonable doubt. Id. C. The Jury Charge The jury charge set s forth the offenses at issue as follows : Count 1 Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, JUAN ANTONIO RODRIGUEZ, on or about the 1st day of October, 2004, in the County of Wichita and State of Te xas, did then and there intentionally or knowingly cause the penetration of the sexual organ of Pseudonym 14

- 110192, a child who was then and there younger than 14 years of age, by defendant’s sexual organ, then you will find the defendant guilty of the of fense of Aggravated Sexual Assault of a Child (Count 1) as alleged in the indictment. But if you do not so believe, or if you have a reasonable doubt thereof, then you will acquit the def endant and say by your verdict “Not Guilty.”10 . . . . Count 2
Now b earing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, JUAN ANTONIO RODRIGUEZ, on or about the 1st day of April, 2005, in the County of Wichita and State of Texas, did then and there, inte ntionally or knowingly cause the penetration of the sexual organ of Pseudonym 14

- 110192, a child who was then and there younger than 14 years of age, by defendant’s sexual organ, then you will find the defendant guilty of the offense of Aggravated Sexual A ssault of a Child (Count 2) as alleged in the indictment. But if you do not so believe, or if you have a reasonable doubt thereof, then you will acquit the def endant and say by your verdict “ No t Guilty.” The jury charge here contained only a generic unan imity instruction: “Your verdict must be unanimous[.]” The jury charge on guilt

- innocence did not contain an

extraneous

- offense instruction.
D
. Error Analysis
The record demonstrates that t he first incident occurred in the laundry room at Vicky ’s grand parents’ house when she was seven or eight years old and in the second or third grade

. 6 Vicky testifi ed that she was sleeping in her room at her grandparents’ house when she heard the door open and felt Rodriguez’ s hands touching her. Rodriguez told her to be quiet and to follow him. Vicky followe d Rodriguez to the laundry room where he turned on the light, pulled out a white sheet, laid it on the ground, and told her to “lay there.” Vicky complied. Rodriguez removed her panties ,

6 No date or time of year was specified as to this incident

.11 and he pulled down his ba sketball shorts and underwear. Rodriguez warned Vicky that “this is going to hurt, just don’t scream” and put his sexual organ inside her sexual organ. Afterwards, Rodriguez helped Vicky to her feet, and she turned around to grab her panties and notic ed blood. Vicky testified that she went to her bedroom
and cried beca use she thought she was dying. The next morning, Vicky made an outcry to her grandmother, but “it just went in one ear and out the other.” Vicky said that after the first incident, Rodr iguez continued to sexually assault her every day or that “[i]t felt like every day. And it probably was every day” with the exception of when she was in the fourth through sixth grade s and l ived with her
parents. She testified that Rodriguez put his sex ual organ inside her sexual organ more than twenty times and that he sometimes sexually assault ed her twice in one night. She said that the incidents took place either in the l aundry room or in her
bedroom. Vicky testified that Rodriguez continued to sex ually assault her when she was in junior high and that it progressed to Rodriguez performing oral sex on her and Rodriguez having her perform oral sex on him. Vicky said that twice Rodriguez attempted anal inter course on her against her will. During its r ebuttal, the State focused its argument on Counts 1 and 2 and emphasized the first incident by summarizing Vicky ’s testimony set forth above and stating, “[I]t’s a vivid memory because it was the first time. It was painful. She cried.
And so there’s blo od, pain[,] and tears.” The State did not, however, explain to the12 jury that Count 1 corresponded to the first time that Rodriguez sexua lly assaulted Vicky , nor did the State point the jury to a specific incident to support Count 2.
Based on the evidence presented of multiple instances of aggravated sexual
assault of a child occurring on different, unspecified dates, the omission of specific unanimity instructions for Count 1 and Count 2 allowed for the possibility of
nonunanimous verdicts. See Arrington v. State , 451 S.W.3d 834, 841 (Tex. Crim. App. 2015) (noting that even several generic requirements of unanimity cannot ensure a unanimous verdict when there is evidence of multiple incidents). Accordingly, we hold that the omission of unanimity instructi ons for both counts was erroneous 7 and proceed to a harm analysis. See id. E. Harm Analysis 1. Entirety of the Charge
A s stated above, t he jury charge permitted nonunanimous verdicts based on t he evidence presented in the case regarding multiple insta nces of sexual abuse . Noth ing in the charge mitigated this conclusion . Accordingly , we conclude that this factor weighs in favor of finding egregious harm. See id. (concluding that entirety of charge weighed in favor of egregious harm because “charge di d not apprise the jury of the proper unanimity requirement”); Ashton v. State , 526 S.W.3d 490, 501 (Tex. App.

— Houston [1 st Dist.] 2017, pet. ref’d ) (same).

7 The S tate concedes that the general unanimity instruction given at the end of the jur y charge was not sufficient to ensure unanimity for a particular criminal act encompassed wi thin Count 2 of the indictment.13 2. The State of the Evidence
As s ummarized above, Vicky testified about the many times she was sex ual ly
assault e d by Rodriguez , providing detailed testimony about the first incident and consolidated testimony about the continuous, recurring sexual abuse . She also
testified th at she told her grandmother and her father about the abuse , that her grandmot her told her aunt, that her family members did not report the abuse to the police, and that the abuse continued until she became pregnant at fifteen years old with Rodriguez’s daughter

— a single act of sexual abuse that he conceded at trial

. Vicky testifie d that she wanted to kill herself because nobody cared but that the thought of her daughter is what stopped her

. The Chief Program Director of Clinical Services from Dallas Children’s Advocacy Center (DCA C ) , who had not interviewed Vicky but testified gene rally about child victims, explained that it is common for child victims not to outcry “for
some time.” She further explained that it is not uncommon for child victims to vividly remember the first instance of sexual abuse and to have less specific memori es of later instances if the abuse c ontinued for a period of time. She testified that forty percent of the children that have come to DCAC have had suicidal thought s, trying to escape the abuse. The police officer who investigated Vicky’s outcry testified that Vicky reported being sexually assaulted by Rodriguez from the time that she was in the second or third grade until she was fifteen years old, with the exception of when she was in14 fourth grade through sixth grade

. The police officer said that she at tempt ed to speak with Vicky ’s aunt, who would not talk if a recorder was on; Vicky’s aunt was angry, defended Rodriguez , and spoke badly of Vicky ’s character. When the police officer spoke with Vicky’s father, he also attacked Vicky ’s character and was mo re concerned
about Rodriguez having to go to jail. Vicky ’s father admitted that Vicky had to ld him when she was a teenager that Rodriguez came in her ro om at night, but Vicky ’s father said that she did not tell him that she had been raped. 8 The State aske d Vicky ’s father why he had screamed at Rodriguez and had wanted to hurt him if he thought that Rodriguez was mere ly going
in Vicky ’s roo m. Vicky ’s father claimed that he did not know what Rodrig uez was doing to her and just thought it was not right for R odriguez to be in her room. Vicky ’s father testified that when he confronted Rodriguez ab out going into her room, Rodriguez put his head down and started crying. Vicky ’s father said that he d id not know that Vicky had told her grandmother about Rodriguez sexually abusing her when she was under f ourteen years old until two years after Vicky gave birth to her daughter. Vicky’s father testified that he did not report Rodriguez to the police at that time because his sister told him that she had
a video showin g that Vicky was at fault , despite the fact that children under fourteen years of age cannot legally consent to sex

. See May v. State , 919 S.W.2d 422, 424 (Tex.

8 Vicky’s father testified that his memory was hazy due to using illegal drugs.15 Crim. App. 1996) (“[I]t is true that a child under fourteen cannot legally consent to sex[.]”)

. Vicky ’s father said that his sister had recently sent him text messages telling him
that he had better make sure and tes tify to help Rodriguez. The State admitted into evidence text messages showing that after the first day of trial, Vicky’s father had received text messages from his sister stating that Vicky had lied on the stand because Rodriguez “never had sex with her when she was little . . . it wasn’t t ill she was around
13 or so

. . . so I’m going up there to see if I can testify agains t her on wh at she lied
about.” When questioned about the text messages, Vicky ’s aunt testified that she had gained her information about Vicky’s trial testimony from the newspaper but admitted
that it did not mentio n the information in her text. Vicky ’s aunt stated that her text
should have said that Vicky was fifteen years old when Rodriguez had sex with her. Vicky ’s aunt testified that when Vicky was fifteen years old, she told her that she was pregnant and that Rodriguez might be the father. Vicky ’s aunt said th at when she questioned Rodrigu ez regarding how Vicky was pregnant with his child, Rodriguez
admitted having sex with Vicky

. Vicky ’s aunt testified that she never knew that Rodriguez was having s ex with Vicky when she was under the age of fourteen ; Vicky ’s

aunt contended that she knew only that Rodriguez had touched Vicky when she was
younger . Vicky ’s aunt testified that her mother ( Vicky ’s grandmother) never told her that Rodriguez had sexually abused Vicky when she was seven or eight years old.16 With rega rd to the two charges of aggravated sexual assault of a child, Rodriguez’s defensive theory at trial was that “to believe [Vicky ] is [to] believe that everybody in her family failed her” because they did not report the abuse after she
told them about it

. Rodriguez further argue d that because family members claimed to
have no knowledge of Rodriguez ’s sexually assaulting Vicky prior to when she was fifteen years old, he was therefore not guilty of aggravated sexual assault of a child. Although Vicky’s family members claimed not to know that Rodriguez had
sexual ly assaulted Vicky on numerous occasions when she was under fourteen years of age, their alleged lack of knowledge of th os e incidents did not impeach Vicky’s testimony that Rodriguez had sexually assaul ted her every day during the time that she lived at her grandparents’ house

. Other than the first incident, all of the other incidents of sexual abuse were presented with equal specificity

— i.e., they occurred in either the laundry room or Vicky’s bedroom

— and none of those incidents were distinguished in any manner from one another. Because the jury charge included two counts of aggravated sexual assault of a child, the jury was free to conclude that one count pertained to the first incident (which was desc ribed in detail and which Vicky reported to her grandmother the morning after) and that the second count pertained to the consolidated account of the sexual assaults that occurred every day af ter the first incident. In deciding to convict Rodriguez on all three counts, the jury necessarily found Vicky credible in testifying about the sexual abuse that occurred when she was under fourteen years of age, as17 well as when she was fifteen ; the jury was not persuaded that Rodriguez had sexually assaulted Vicky on ly when she was fifteen years old

. Cf. Arrington , 4 51 S.W.3d at 84 4 (“The jury in this case, after hearing all the evidence clearly credited [the complainant’s] story and did not believe appellant’s categorical denial of all accusations.”). There was no danger here that some jurors would find that Rodriguez sexually assaulted Vicky on or about the two dates alleged in the charge, while others
would have found that he committed that same offense on two other unspecified
dates. See Owings , 541 S.W.3d at 15 2 (“[T]here was no danger here that some jurors might have believed that one incident occurred and another or others did not.”);
Owens v. State , Nos. 01

- 16

- 00826

- CR, 01

- 16

- 00827

- CR, 2018 WL 4128029, at *6 (Tex. App.

— Houston [1 st Dist.] Aug. 30, 2018, no pe t.) (mem. op., not designated for publication). It is thus highly likely that the jury’s verdicts were, in fact, unanimous.
See Cosio , 353 S.W.3d at 778 (“On this record, it is logical to suppose that the jury unanimously agreed that Cosio committed all of the separate instances of criminal conduct during each of the four incidents.” ). After reviewing the evidence from Rodriguez’s trial, we conclude that t his factor does not weigh in favor of finding egregious harm. 3. The Parties’ Arguments
Neither th e State nor Rodriguez told the jurors that they must be unanimous about which criminal episode constituted each offense, nor were they told that they18 need not be unanimous. This factor therefore weigh s neither for nor against finding egregious harm. See Arrington , 451 S.W.3d at 844.
4. Other Relevant Information As to the final factor, we review the record for any other relevant information requiring consideration

. During voir dire, the trial court stated that the jury’s verdict
in a criminal trial must be unanimous

— that all members must agree

— but did not explain the specific unanimity required for each offense as to the particular act
for ming the basis of the offense. The State mentioned that it must prove the date of
the offense and that it could be a ny date before the date the indictment was returned , which is a true statement of law

. Defense counsel stated that “ there may be evidence that goes to all three counts, each count you have to make an individual verdict for
that count. ” Defense counsel’s statements are true; the jury could consider evidence, such as testimony regarding Vicky’s age and the county of offense, for each of the
three offense s . Neither the State’s nor defense counsel’s statements during voir dire
clarified or exacerbated the ch arge issue. Other relevant evidence that we may consider is whether the jury rejected one of multiple counts or sent requests for clarification during deliberations

. See Smith v.
State , 515 S.W.3d 423, 431 (Tex. App.

— Houston [14 th Dist.] 2017, pet. ref’d )

. The jury did not reject any of the counts that were submitted in the charge. Moreover, the19 jury ’s sole note did not show that the jury sought any clarification regarding unanimity. 9 Thus, the final factor does not weigh in favor of or against finding e gregious
harm. See id.
5. No Showing of Egregious Harm Only one of the four factors

— the entirety of the charge

— weighs in favor of a finding of egregious harm. In light of our analysis of these four factors and after reviewing the appellate record, we c annot conclude that the charge error affected the very basis of the case, deprived Rodriguez of a valuable right, vital ly affected the defensive theory , or mad e a case for conviction clearly and significantly more persuasive

. Accordingly, we hold that Rod riguez was not egregiously har med by the erroneous charge

. See Arrington , 451 S.W.3d at 839

– 40 (holding appellant was not egregiously harmed by charge that omitted unanimity instruction when entirety of charge was the only factor weighing in favor of egre gious harm); Cosio , 353 S.W.3d at
777

– 78 (same); Ashton , 526 S.W.3d at 50 3 (same); see also French v. State , No. PD

- 0038

- 18, 2018 WL 6626501, at *8 (Tex. Crim. App. Dec. 19, 2018) (concluding, after considering charge error in light of the Almanza factors, that “the risk that a rational juror would have convicted Appellant on the basis that he contacted and/or

9 The record includes one jury note asking to see a co py of Vicky’s testimony. The trial court responded, “You have to state there is a disagreement and what the disagreeme nt is and to whose testimony.” No other jury notes are referenced in the record.20 penetrated J.F.’s sexual organ with his own

— and not also on the basis that he contacted and/or penetrated her anus

— is not ‘remotely significant,’ and is, in fact, so ‘highly unlikely’ as to be ‘almost infinitesimal ’”); Owens , 2018 WL 4128029, at *6 (concluding that, to the extent a nonunanimous verdict was a theoretical possibility due to evidence that appellant performed oral sex on the complainant on multiple but separate occasions that were not distinguished in any manner from one another , there was no egregious harm ).
V. Conclusion Having determined that the State was not required to elect between two separate counts of aggravated sexual assault of a child and that the erroneous omission of unanimity instructions on both counts did not cause Rodriguez egregious harm, we overrule hi s sole point and affirm the trial court’s judgments on each of his
three convictions

. /s/ Dabney Bassel Dabney Bassel J ustice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: January 31, 2019