1 

NO. PD-0840-15 

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

___________________________________________________________________ 

FERNANDO PENA

Petitioner

v. 

THE STATE OF TEXAS

 

Petition in Cause No. B19587-1401 from the 

242nd Judicial District Court of Hale County, Texas and 

Case No. 07-14-00163-CR in the Court of Appeals for the Seventh 

Supreme Judicial District of Texas

___________________________________________________________________ 

PETITION FOR DISCRETIONARY REVIEW

JAMES B. JOHNSTON 

EASTERWOOD, BOYD & SIMMONS, PC

P. O. Box 273 

Hereford, Texas 79045 

(806) 364-6801 

(806) 364-2526 – telefax

Email: bryan@ebs-law.net

State Bar No: 10838200 

ATTORNEY FOR PETITIONER,

FERNANDO PENA

PD-0840-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 8/13/2015 10:56:27 AM

Accepted 8/17/2015 1:42:40 PM

ABEL ACOSTA

CLERK
2

NAME OF ALL PARTIES TO THE

TRIAL COURT’S FINAL JUDGMENT

Below is a complete list of the identity of the judge and all parties to the trial 

court’s judgment, and all trial and appellate counsel:

1. Hon. Edward Lee Self, Trial Court Judge

242nd Judicial District Court

225 Broadway, Suite 3

Plainview, Texas 79072

2. Appellant, FERNANDO PENA

408 W 11th, Apt. A 

Plainview, Texas 79072

3. Petitioner’s Trial Counsel

Jesse Mendez

Attorney at Law

2833 74th St.

Lubbock, Texas 79423

4. Petitioner’s Appellate Counsel

James B. Johnston

EASTERWOOD, BOYD & SIMMONS, PC

P.O. Box 273

Hereford, Texas 79045

5. Trial and Appellate Counsel for the State of Texas

Wally Hatch/Chris Brown (trial)

Meredith Bridges/Wally Hatch (appeal)

Hale County District Attorney

225 Broadway, Suite 1

Plainview, Texas 79072
3

TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES AND COUNSEL..............................................2

TABLE OF CONTENTS...........................................................................................3

INDEX OF AUTHORITIES......................................................................................4

STATEMENT REGARDING ORAL ARGUMENT................................................6

STATEMENT OF THE CASE..................................................................................6

STATEMENT OF PROCEDURAL HISTORY........................................................7

GROUNDS FOR REVIEW.......................................................................................8

1. When the trial court errs by omitting a unanimity 

instruction to the jury pursuant to an indictment 

charging one indecency offense and the evidence at trial 

identifies two separate and distinct incidences, the 

Almanza egregious harm standard is an improper bases 

for analysis even if the defendant did not object to the 

charge. [Clerk’s Record pp. 49-52]

2. Issues involving the omission of a unanimity instruction 

in an indecency case should not be analyzed under the 

traditional Almanza egregious harm standard.

3. The Seventh Court of Appeals improperly applied the 

Almanza egregious harm analysis in this case.

ARGUMENT .............................................................................................................8

PRAYER FOR RELIEF...........................................................................................12

CERTIFICATE OF COMPLIANCE.......................................................................13

CERTIFICATE OF SERVICE ................................................................................14

APPENDIX..............................................................................................................15
4

INDEX OF AUTHORITIES

CASES

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984)..................6, 8, 9, 10, 11

Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011)...........................................9

Gelinas v. State, 398 S.W.3d 703 (Tex. Crim. App. 2013)........................6, 9, 10, 11

Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005)...................................6, 9, 10

Digman v. State, 455 S.W.3d 207 (Tex. App. – Amarillo 2014).........................6, 10

Bell v. State, 2015 Tex. App. LEXIS 3572 (Tex. App. – Dallas 2015)...............6, 10

STATUTES

Tex. Code Crim. Proc. Ann. Article 36......................................................................8

Tex. Code Crim. Proc. Ann. Article 37......................................................................8

Tex. Code Crim. Proc. Ann. Article 45......................................................................8

Tex. Const. Art. V, Section 13 ...................................................................................8
5

NO. PD-0840-15

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

___________________________________________________________________

FERNANDO PENA

Petitioner

v.

THE STATE OF TEXAS

 

Petition in Cause No. B19587-1401 from the

242nd Judicial District Court of Hale County, Texas and

Case No. 07-14-00163-CR in the Court of Appeals for the Seventh

Supreme Judicial District of Texas

___________________________________________________________________

 

 

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE COURT OF

CRIMINAL APPEALS OF TEXAS:

FERNANDO PENA petitions the Court to review the judgment affirming his 

conviction for the second degree felony offense of indecency with a child, and 
6

punishment assessed at eight (8) years confinement in the Institutional Division of the 

Texas Department of Criminal Justice and a fine of $5,000, and the judgment of the 

Seventh Court of Appeals affirming that conviction.

STATEMENT REGARDING ORAL ARGUMENT

Oral argument would be helpful to the Court for the purpose of discussing 

whether it is proper to analyze a trial court’s error in omitting a unanimity charge to the 

jury under the standard of review set forth in Almanza and Gelinas. There exists a 

direct conflict among the decisions of the appellate courts of this state regarding the 

application of the egregious harm standard as set forth in those cases and the cases of 

Digman v. State, 455 S.W.3d 207 (Tex. App. – Amarillo 2014), Bell v. State, 2015 

Tex. App. LEXIS 3572 (Tex. App. – Dallas 2015), and Ngo v. State, 175 S.W.3d 738 

(Tex. Crim. App. 2005).

STATEMENT OF THE CASE

Petitioner was convicted by a jury of indecency with a child. The Seventh Court 

of Appeals in its opinion in this case acknowledged that the trial court abused its 

discretion by omitting a required instruction on jury unanimity [Court of Appeals 

Opinion, p. 7]. The court concluded, however, that the error, which was not objected to 

at trial, was not egregious and therefore did not require reversal of the conviction under 

the Almanza standard. 
7

The Court of Appeals held that Appellant did not demonstrate actual, rather than 

theoretical, harm. The appellate court stated that “From the entirety of the charge and 

the arguments of counsel, we find little to support a conclusion appellant suffered 

actual harm . . . . The omission of a unanimity instruction did not affect the very basis 

of the case, deprive appellant of the valuable right of a unanimous verdict or vitally 

affect his defensive theory so as to deprive him of a fair trial.”

STATEMENT OF PROCEDURAL HISTORY

Petitioner pleaded not guilty [RR p. 122] to the offense of indecency with a child

as charged in the indictment [CR p. 5]. The indictment charged only one specific 

incident, but the charge to the jury allowed them to make a finding of guilt based on 

two separate incidents testified to by the victim [CR pp. 49-50, paragraphs 7 and 8]. 

The case was tried to a jury, which found Petitioner guilty as charged in the indictment

[RR p. 262]. The jury sentenced Petitioner to a term of eight (8) years TDCJInstitutional Division and a fine of $5,000 [RR pp. 292-293]. Petitioner filed a timely

motion for new trial [CR pp. 124-126] and timely notice of appeal [CR p. 85]. The 

Seventh Court of Appeals affirmed Petitioner’s conviction on June 4, 2015. Pena v. 

State, 2015 Tex. App. LEXIS 5733 (Tex. App. Amarillo June 4, 2015). No motion for 

rehearing was filed. Petitioner requested an extension of the time to file a petition for 

discretionary to August 5, 2015, which request was granted.
8

GROUNDS FOR REVIEW

1. When the trial court errs by omitting a unanimity 

instruction to the jury pursuant to an indictment 

charging one indecency offense and the evidence at 

trial identifies two separate and distinct incidences, 

the Almanza egregious harm standard is an 

improper bases for analysis even if the defendant 

did not object to the charge. [Clerk’s Record pp. 49-

52]

2. Issues involving the omission of a unanimity 

instruction in an indecency case should not be 

analyzed under the traditional Almanza egregious 

harm standard.

3. The Seventh Court of Appeals improperly applied 

the Almanza egregious harm analysis in this case.

ARGUMENT

Under Tex. Const. art. V, § 13, jury unanimity is required in felony cases, and, 

under Tex. Code Crim. Proc. Ann. arts. 36.29(a), 37.02, 37.03, 45.034-45.036, 

unanimity is required in all criminal cases. The unanimity requirement is a complement 

to and helps in effectuating the “beyond a reasonable doubt” standard of proof. The 

unanimity rule requires jurors to be in substantial agreement as to just what a defendant 

did as a step preliminary to determining whether the defendant is guilty of the crime 

charged. Requiring the vote of twelve jurors to convict a defendant does little to insure 

that his right to a unanimous verdict is protected unless this prerequisite of jury 
9

consensus as to the defendant’s course of action is also required. Ngo v. State, 175 

S.W.3d 738, 745 (Tex. Crim. App. 2005). This language should be a clear indication 

that the right to jury unanimity is a valuable right, one of the protections expressly 

delineated by this Court in Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 

2011). Note that this language, which originated with Almanza v. State, 686 S.W.2d 

157, 171 (Tex. Crim. App. 1985), is in the disjunctive, not the conjunctive. An 

Appellant need not show all three of the effects of harm in order to obtain a finding of 

egregious harm. Unfortunately, as appellate precedence on this issue has developed, 

appellate courts have appeared to require all three of the effects: “affected the very 

basis of the case, deprived the defendant of a valuable right, or vitally affected a 

defensive theory”. Cosio, at *777.

If the right to jury unanimity is a valuable right protected by both constitutional 

and statutory provisions, that right should be protected by precedence which would 

either: (1) find that omission of a proper unanimity instruction is per se egregious 

harm, or (2) analyze the error under a “some harm” standard as opposed to an 

egregious harm standard. As Justices Meyers, Price and Johnson pointed out in their 

dissenting opinion in Gelinas v. State, 398 S.W.3d 703, 713 (Tex. Crim. App. 2013), 

“Appellate courts have clearly had difficulty judging how to weigh the Almanza

factors, but the worst feature of the Almanza egregious harm standard is that it is so 
10

unfair to defendants . . .” As proposed by those Justices, “ . . . it would be more 

equitable to do away with the enigma of Almanza and treat all jury charge error under 

the same ‘some harm’ standard.” The omission of a unanimity instruction is a different 

animal than the omission of other statutorily-based instructions, and a different 

standard of review should apply. The unfairness of the current analysis is illustrated by 

the seemingly conflicting application of that standard in cases such as Digman v. State, 

455 S.W.3d 207, 214 (Tex. App. – Amarillo 2014) [“The charge’s application 

paragraph improperly permitted jurors to convict appellant of either of two separate 

offenses without requiring them to be unanimous as to the offense committed.”]; Bell 

v. State, 2015 Tex. App. LEXIS 3572 at *12-13 (Tex. App. – Dallas 2015) 

[“Regardless of how often a generic unanimity requirement was mentioned, however, 

the instructions failed to apprise the jurors that they had to be unanimous on which 

incident of criminal conduct they believed constituted each count in the indictment. As 

a result, the entire jury charge in this case weighs in favor of a finding of egregious 

harm.”]; Ngo v. State, 175 S.W.3d 738, 752 (Tex. Crim. App. 2005) [“We therefore 

agree that appellant’s constitutional and statutory right to a unanimous jury verdict was 

violated and this violation caused egregious harm to his right to a fair and impartial 

trial.”]; and the application in Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 

2013) [“After conducting an Almanza analysis in the instant case, we find the 
11

erroneous article 38.23 instruction did not egregiously harm Gelinas.”]. As stated by 

the dissent in Gelinas, “The conflicting decisions of the court of appeals and the 

plurality in this case exhibit the conundrum created by Almanza in trying to determine 

harm vs. egregious harm. Analysis under Almanza has resulted in uneven rulings 

because the factors used to distinguish between harm and egregious harm are difficult 

to decipher.” Gelinas, at 713.

The particular problem in employing the Almanza standard is illustrated in 

Petitioner’s case, where the Seventh Court of Appeals specifically stated “Though 

perhaps inclining toward a finding of egregious harm in this case, we assign little 

weight to the entirety of the charge in our analysis.” [Court of Appeals Opinion, at p. 

9]. The Seventh Court of Appeals went on to find “no reason a juror who did not 

accept that testimony (as to one of the two incidents testified to by the victim) would 

have believed appellant committed the offense only at the birthday party.” [Court of 

Appeals Opinion, at p. 11]. This can amount to only conjecture, a problem which 

would have been ameliorated by the proper unanimity instruction. As to the analysis of 

the “entirety of the record” prong of the egregious harm analysis, the appellate Court 

simply reiterated the requirement of “actual harm,” without discussing the force of 

Petitioner’s evidence concerning his absence from the birthday party, the lack of 

medical evidence, and the improper bolstering of the victim’s testimony by the State’s 
12

witnesses. [Court of Appeals Opinion, at p. 12]. Finally, the Seventh Court of Appeals 

determined that the argument of the prosecutor, wherein he stated “If you believe this 

happened, and there's no reason to not believe this other than you just don't want to, 

and you believe it happened before January 31, 2014, while Brianna was alive, which 

all the evidence shows.” [RR p. 247, lines 22-25] did not weigh for or against a finding 

of actual harm. [Court of Appeals Opinion, at p. 11]. Petitioner disagrees, asserting that 

such an argument was a clear invitation to the jury to convict on either of the two 

distinct incidents offered by the State.

For the foregoing reasons, Petitioner requests this Court to find that (1) the 

egregious harm standard of Analysis is inappropriate in a case where the trial court 

omitted a unanimity instruction to the jury; and/or (2) the Seventh Court of Appeals 

improperly applied the egregious harm standard in this case. Therefore, the judgment 

of the Seventh Court of Appeals should be reversed.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court 

grant this petition, and upon reviewing the judgment entered by the Seventh Court of 

Appeals, reverse the judgment of the Court of Appeals with instructions to that court to 

remand the case to the trial court for a new trial. In the alternative, in the event this 

Court determines that the court of appeals improperly applied the egregious harm 
13

analysisin this case, the Court of Criminal Appeals should reverse the judgment of the 

Seventh Court of Appeals and remand the case for a more thorough harm analysis.

Respectfully submitted, 

Easterwood, Boyd & Simmons, PC

623 N. Main Street, P.O. Box 273

Hereford, TX 79045

Tel: (806) 364-6801

Fax: (806) 364-2526

By: /s/ James B. Johnston

James B. Johnston

State Bar No. 10838200

Email: bryan@ebs-law.net

Attorney for Fernando Pena

CERTIFICATE OF COMPLIANCE

This is to certify that the number of words in this document according to the 

word count of the program used to prepare the document is 2473.

/s/ James B. Johnston 

James B. Johnston
14

Certificate of Service

I hereby certify that a true copy of the foregoing instrument was provided to all 

counsel of record in this matter on the 13th day of August, 2015, in accordance with 

the Texas Rules of Appellate Procedure. 

State Prosecuting Attorney

P. O. Box 12405

Austin, Texas 78711

Wally Hatch

Hale County District Attorney

225 Broadway, Suite 1

Plainview, Texas 79072

/s/ James B. Johnston

James B. Johnston
15

APPENDIX

Opinion of the Seventh Court of Appeals
In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-14-00163-CR 

FERNANDO PENA, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 242nd District Court 

Hale County, Texas 

Trial Court No. B19587-1401, Honorable Edward Lee Self, Presiding 

 

June 4, 2015 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

A jury convicted appellant Fernando Pena of one count of indecency with a child 

by sexual contact1and assessed punishment at eight years’ confinement in prison and 

a $5,000 fine. He was sentenced accordingly. Through three issues, appellant 

complains the trial court abused its discretion by failing to include in the jury charge a 

unanimity instruction. Appellant further contends he was egregiously harmed by the 

error. We find the trial court erred in failing to submit a unanimity instruction, but 

 

1

TEX. PENAL CODE ANN. § 21.11(a)(1) (WEST 2011).
2

appellant was not egregiously harmed. We will therefore affirm the judgment of the trial 

court. 

Background

The single-count indictment alleged “on or about the 1st day of June, 2013, . . . 

[appellant] did then and there with the intent to arouse or gratify the sexual desire of 

said [appellant], intentionally or knowingly engage in sexual contact with B.G. by 

touching the genitals of B.G., a child younger than 17 years and not the spouse of 

[appellant].”

At trial, nine-year-old B.G. testified that while visiting her uncle’s home, she and 

appellant sat on a living-room couch watching television. Appellant touched her “private 

spot,” what she called her “nana,” with his hands, under her pajamas and underwear. 

It is not disputed that the child’s reference to her “private spot” and “nana” referred to 

her genitals. B.G. could not recall the exact date of this occurrence. B.G. told no one at 

the time.

B.G. testified of another visit to her uncle’s home. The occasion was a party 

celebrating her ninth birthday in July 2013. During the visit, she was seated in a room 

by the back door watching television. The room was furnished with brown chairs. 

Appellant joined her in the room and touched her “nana” over her clothing with his 

hands. B.G. again told no one of the occurrence.

On her own initiative, B.G. later made an audio recording on an electronic video 

game device. During her trial testimony she agreed with the prosecutor that in the 
3

recording she “sa[id] what Freddie had done.”2 B.G.’s stepfather testified he later 

overheard the recording and told her mother what he heard. Police were contacted. 

When B.G. was asked at trial if “Freddie” ever made her touch him, she 

answered he once “grabbed [her] hands (sic) and put it in his pants” touching his skin. 

She could not say if this conduct occurred the “first time” appellant touched her or later 

on her birthday. 

A worker at the Children’s Advocacy Center (CAC) interviewed B.G. The worker 

testified at trial but she was not treated as an outcry witness and did not testify to B.G.’s 

statements to her. B.G. did not receive a medical examination and no medical evidence 

was presented at trial. 

Appellant, approximately 60 years old, is related by marriage to A.A., the wife of 

B.G.’s uncle. B.G.’s uncle and his wife, A.A., each testified for the defense, and were 

the only defense witnesses. Their testimony indicated they frequently hosted family 

gatherings. The uncle was emphatic that at no time were B.G. and appellant alone 

while visiting at his house. Without equivocation, he further testified that appellant was 

not present at B.G.’s birthday party. When asked on cross-examination why he did not 

believe B.G., the uncle explained he had known appellant for sixteen or seventeen 

years and “you start to know people, and I honestly believe that he didn’t do it.” Nine 

photographs were admitted for the defense through A.A. Seven depicted B.G.’s 

birthday party. Appellant did not appear in any of these photographs but A.A. indicated 

that not all birthday-party guests appeared in the photographs. Like her husband, A.A. 

 

2

It is not disputed that “Freddie,” as used by B.G. in her trial testimony, meant appellant. 
4

was certain appellant was not present at B.G.’s birthday party. On cross-examination, 

A.A. testified she was “certain” also that only once were B.G. and appellant both present 

at her house. That occasion, she said, was a September football party. A.A. also said 

the conduct B.G. alleged “didn’t happen.” 

In the jury charge, the application paragraph asked whether appellant engaged in 

the conduct alleged “on or about June 1, 2013.” An instruction informed the jury about 

the date of the offense:

The State is not bound by the specific date which the offense, if any, is 

alleged in the indictment to have been committed. A conviction may be 

had upon proof beyond a reasonable doubt that the offense, if any, was 

committed at any time prior to the filing of the indictment which is within 

the period of limitations. The date of the filing of the indictment in this 

case was January 31, 2014. There is no limitation period applicable to the 

offense of indecency with a child by sexual contact.

Although B.G. testified appellant unlawfully touched her on two occasions the 

jury was not specifically instructed in the charge that it had to agree unanimously on a 

single, discrete occurrence constituting the commission of the charged offense.3 

Rather, the only mention of unanimity in the charge at the guilt-innocence phase was 

the following general instruction: 

After you retire to the jury room, you should elect one of your members as 

your Presiding Juror. It is the duty of the Presiding Juror to preside at your 

deliberations, to vote, and, if you unanimously agree upon a verdict, to 

certify your verdict by completing and signing the verdict form.

Neither side objected to the absence of a specific unanimity instruction.

In closing argument, the prosecutor stated: 

 

3 Cosio v. State, 353 S.W.3d 766, 771, 772 (Tex. Crim. App. 2011).
5

If you believe it happened, and you believe it happened anytime between 

January 31, 2014, back through eternity. I guess it would be back through 

[B.G.’s] birth day, the actual day she was born. If you believe it happened 

during that time period, then on or about June 1, 2013 is sufficient.

Later in the argument he added:

If you believe this happened, and there’s no reason to not believe this 

other than you just don’t want to, and you believe it happened before 

January 31, 2014, while [B.G.] was alive, which all the evidence shows. 

Still later he argued:

If you believe he did it, and I would submit to you the evidence doesn’t 

show anything else, then he has to be found guilty. I mean, in fact, look at 

Defendant’s 8. There’s that brown chair by the TV in the side room by the 

kitchen that she described for you. Ladies and gentlemen, she’s not 

making this up.

Appellant was convicted and sentenced as noted.

Analysis

Appellant argues the trial court abused its discretion by failing to submit a charge 

containing a specific unanimity instruction. Because this complaint was not made at 

trial, appellant further asserts that he was egregiously harmed by the error. 

Necessity of a Specific Unanimity Instruction

The verdict of a jury must be unanimous about the specific crime the defendant 

committed. Cosio, 353 S.W.3d at 771 (citing Landrian v. State, 268 S.W.3d 532, 535 

(Tex. Crim. App. 2008)). “[T]he jury must ‘agree upon a single and discrete incident that 

would constitute the commission of the offense alleged.’” Cosio, 353 S.W.3d at 771 

(quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). “[N]onunanimity may occur when the State charges one offense and presents evidence that 

the defendant committed the charged offense on multiple but separate occasions.” 
6

Cosio, 353 S.W.3d at 772. Each occurrence of the charged offense constitutes a 

different offense or unit of prosecution. Id. In such cases, it is the trial court’s obligation 

to submit a charge instructing the jury “that its verdict must be unanimous as to a single 

offense or unit of prosecution among those presented.” Id. at 772, 776 (stating even 

when the State is not put to an election, the trial judge must prepare a charge ensuring 

a unanimous verdict based on the specific evidence presented). This duty is not 

discharged through a “boilerplate” instruction informing the jury that its verdict must be 

unanimous because the jury might understand the direction to mean it must be 

unanimous about the offense in general and not a specific occurrence constituting the 

charged offense. Cosio, 353 S.W.3d at 773-74 (citing Ngo v. State, 175 S.W.3d 738, 

745 (Tex. Crim. App. 2005)). Rather, “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. at 776. “Such an instruction should not refer to any 

specific evidence in the case and should permit the jury to return a general verdict.” Id.

The State argues a unanimity instruction was not required because appellant 

was charged with only one offense, indecency with a child by touching the genitals. 

When, it continues, the evidence presents multiple occurrences of the conduct alleged 

by the indictment the defendant may require the State to elect which of the charged acts 

it will rely on for conviction. But here appellant did not request an election. 

Avoiding a unanimity problem when one offense is charged but the evidence 

shows the defendant committed the offense on multiple, separate occasions is 

ultimately the responsibility of the trial court. See Cosio, 353 S.W.3d at 776 
7

(“guaranteeing unanimity is ultimately the responsibility of the trial judge because the 

judge must instruct the jury on the law applicable to the case”). A unanimous verdict is 

ensured in this situation by instructing the jury in the charge “that its verdict must be 

unanimous as to a single offense or unit of prosecution among those presented.” Id. at 

772. Conversely, the defendant is not compelled to request an election. See Ngo, 175 

S.W.3d at 747-48 (noting that when, among other scenarios, the State presents 

evidence of the perpetration of the same criminal act on different occasions the 

defendant may, but is not bound to, request the State to elect which specific act it relies 

on for conviction); id. at 747 n.34; id. at 748 (“A request for an election, however, is not 

a prerequisite for implementing Texas’ constitutional and statutory requirement of jury 

unanimity”). Indeed, for a strategic purpose a defendant may choose not to request an 

election. See Cosio, 353 S.W.3d at 775 (“A defendant may choose not to elect so that 

the State is jeopardy-barred from prosecuting on any of the offenses that were in 

evidence”).

Because evidence of more than one instance of a criminal act constituting the 

charged offense was presented at trial, an instruction on juror unanimity as to the 

specific instance was required. Cosio, 353 S.W.3d at 772. Its omission was an abuse 

of discretion.

Egregious Harm Analysis

Appellant did not object to the absence of a unanimity instruction in the charge 

but contends as a result his trial was fundamentally unfair. A party must generally make 

a proper objection in the trial court to preserve the error for appeal. See TEX. R. APP. P.
8

33.1(a). However, in criminal cases courts may “take notice of a fundamental error 

affecting a substantial right, even if the claim of error was not properly preserved.” TEX.

R. EVID. 103(e). Fundamental error includes jury charge errors resulting in egregious 

harm. Baker v. State, No. 02-14-00157-CR, 2015 Tex. App. LEXIS 846, at *4-5 (Tex. 

App.—Fort Worth Jan. 29, 2015, no pet.) (per curiam, mem. op. on reh’g, not 

designated for publication) (citing Saldano v. State, 70 S.W.3d 873, 887-89 (Tex. Crim. 

App. 2002)). Reversal then on a claim of egregious harm is possible “only if the error 

was fundamental in the sense that it was so egregious and created such harm that the 

defendant was deprived of a fair and impartial trial.” Villarreal v. State, 453 S.W.3d 429, 

433 (Tex. Crim. App. 2015); Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. 

App. 1985) (op. on reh’g). 

The harm must be actual rather than theoretical. Villarreal, 453 S.W.3d at 433 

(citing Cosio, 353 S.W.3d at 777). “Egregious harm is a ‘high and difficult standard’ to 

meet, and such a determination must be ‘borne out by the trial record.’” Villarreal, 453 

S.W.3d at 433 (quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). 

Actual harm is shown if the error in the charge affected ‘“the very basis of the case,’ 

‘deprive[d] the defendant of a valuable right,’ or ‘vitally affect[ed] a defensive theory.’” 

Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015) (quoting Cosio, 353 

S.W.3d at 777). Our analysis takes into account the entire jury charge, the state of the 

evidence, including the contested issues and weight of probative evidence, the 

argument of counsel and any other relevant information revealed by the trial record as a 

whole. Villarreal, 453 S.W.3d at 433. 
9

Entirety of the Jury Charge

In conjunction with selection of the presiding juror, and that person’s duties, the 

charge instructed, “if you unanimously agree upon a verdict” the presiding juror must 

certify the verdict. But here such general language ensures only that the jurors agreed 

appellant engaged in the charged conduct at some point in time. See Ngo, 175 S.W.3d 

at 745 (commenting, as to substantively identical “boilerplate” instruction, “the jury could 

well have believed that they need only be unanimous about their ‘verdict’ of guilty or not 

guilty of the general offense [charged]”). Some jurors might have believed appellant 

touched B.G. only on the first occurrence to which she testified while others might have 

been convinced he committed the offense at her birthday party. Therefore analysis of 

the entire charge in this case might incline toward a finding of egregious harm. See 

Arrington, 451 S.W.3d at 841 (“Because the entire charge did not apprise the jury of the 

proper unanimity requirement, we conclude that this factor weighs in favor of finding 

egregious harm”). On the other hand, the court’s error was the omission of an 

instruction rather than the inclusion of an erroneous instruction. See Taylor v. State, 

332 S.W.3d 483, 493 (Tex. Crim. App. 2011) (contrasting omission of instruction with 

charge in another case which mis-instructed the jury).4 Though perhaps inclining 

toward a finding of egregious harm in this case, we assign little weight to the entirety of 

the charge in our analysis. See Cosio, 353 S.W.3d at 777 (noting merely that charge 

“permitted” non-unanimous verdicts, and that “nothing in charges themselves militates 

against” an egregious harm determination).

 

4

The other case referred to in Taylor, 332 S.W.3d at 493, was Hutch v. State, 922 S.W.2d 166 

(Tex. Crim. App. 1996), in which the court found egregious harm from an instruction that “was 180 

degrees opposite of what it should have been.” Hutch, 922 S.W.2d at 172.
10

State of the Evidence

The State’s case was made through the brief testimony of B.G. The jury did not 

hear medical evidence, the substance of B.G.’s statements at the CAC interview, or the 

words of her electronically-recorded outcry. Through the testimony of his two 

witnesses, appellant presented the defense that he was not guilty of the conduct 

charged, on either occasion to which B.G. testified, and he was definitely not present on 

her birthday. Because appellant’s indecent conduct was described in the evidence only 

by B.G.’s testimony, the jury could not have convicted appellant without accepting her 

testimony. And there was little difference in her descriptions of appellant’s actions on 

the two occasions to which she testified. On both occasions, she was seated watching 

television at her uncle’s house when appellant touched her.5 It is obvious also that the 

jury did not accept the defense witnesses’ assertions of appellant’s innocence. 

To an extent, appellant’s defense focused on his witnesses’ insistence that 

appellant did not attend the birthday party, and thus could not have committed 

indecency on that occasion. To that extent, the state of the evidence differs from that in 

cases like Ruiz v. State, 272 S.W.3d 819 (Tex. App.—Austin 2008, no pet.), in which 

the defendant’s theory left the jury with an “all-or-nothing decision.” Id. at 826; see 

Arrington, 451 S.W.3d at 842 (discussing Ruiz); Jourdan v. State, 428 S.W.3d 86 (Tex. 

Crim. App. 2014). Nonetheless, the evidence does not present a likelihood that jurors 

voted for conviction but did not agree appellant committed indecency on one specific 

occasion. A juror who accepted the testimony appellant did not attend the birthday 

 

5

B.G. testified appellant touched her under her clothing on the first occasion and over her 

clothing at the birthday party. 
11

party must have found he committed the offense on the first occasion B.G. described. 

And we see in the evidence no reason a juror who did not accept that testimony would 

have believed appellant committed the offense only at the birthday party. As we have 

noted, B.G.’s descriptions of the two occasions were very similar. We think a juror who 

believed her testimony that appellant touched her during her birthday party, over the 

strong defensive assertions he was not then present, almost certainly also believed 

appellant committed indecency on the first occasion. See Taylor, 332 S.W.3d at 493 (“It 

is unlikely that the jury believed that [Taylor] sexually assaulted the victim before he 

turned 17 years old but not after”). 

Argument

As noted from its quoted excerpts, the prosecutor’s argument at times used 

singular pronouns when referring to the occurrence. But it would be an unwarranted 

conclusion that such expressions moved the jury toward reaching a non-unanimous 

verdict. Neither the State nor the defense told the jurors they must be unanimous as to 

the appellant’s guilt on a single incident, but neither told the jury they could convict 

without unanimity. Cf. Ngo, 175 S.W.3d at 750; Digman v. State, 455 S.W.3d 207, 210-

11 (Tex. App.—Amarillo 2015, pet. ref’d) (in both cases, prosecutors’ argument 

emphasized jury’s ability to convict without unanimity on particular conduct). Thus we 

do not find the argument of counsel weighs for or against a finding of actual harm. 

Entirety of the Record

At oral argument, appellant argued that the simplicity of the charge and the 

evidence in this case heightens the risk of a non-unanimous verdict. As appellant 
12

noted, the case involves only a single count alleging indecency but two distinct 

occasions of conduct. Because the jury was not made to understand that to find 

appellant guilty they must agree unanimously that he committed the offense on both or 

only one occasion, he argued, the jury was never required to consider the impact of the 

defensive evidence he was not present on one of the two occasions alleged. As 

appellant sees it, the straight-forward case presented by this record carries an even 

greater risk of non-unanimity than cases like Arrington, 451 S.W.3d at 837-39, which 

involved seven counts and evidence of multiple acts of indecent and assaultive conduct. 

Under the egregious harm standard, reversal is possible only if the record shows 

actual rather than theoretical harm. Bell v. State, No. 05-13-01616-CR, 2015 Tex. App. 

LEXIS 3572, at *15-16 (Tex. App.—Dallas Apr. 10, 2015, no pet.) (citing Nava v. State,

415 S.W.3d 289, 298 (Tex. Crim. App. 2013)). From the entirety of the charge and the 

arguments of counsel, we find little to support a conclusion appellant suffered actual 

harm. We find the state of the evidence militates against a finding of actual harm. And 

we find appellant’s contention based on the entirety of the record unpersuasive as 

indicative of actual harm. The omission of a unanimity instruction did not affect the very 

basis of the case, deprive appellant of the valuable right of a unanimous verdict or vitally 

affect his defensive theory so as to deprive him of a fair trial.

Conclusion

The trial court abused its discretion by omitting the unanimity instruction, but 

appellant did not suffer egregious harm from the error, so it was not fundamental. We 
13

overrule appellant’s issues asserting egregious harm, and affirm the judgment of the 

trial court. 

James T. Campbell

 Justice

Do not publish.