Opinion issued July 12, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00179-CR

———————————

MIGUEL GOMEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Case No. 1358720

O P I N I O N

A jury convicted Miguel Gomez of aggravated sexual assault of a child 

under 14 years of age. See TEX. PENAL CODE § 22.021. The court assessed 

punishment at 25 years in prison. Among other issues on appeal, Gomez asserts 
2

constitutional error in the trial court’s failure to instruct the jury that it must

unanimously agree on the occurrence of a single incident of conduct.

We conclude that the State’s argument misinformed the jury about the 

requirement that it unanimously agree on a single incident of criminal conduct, and 

the trial court’s erroneous failure to instruct the jury on this issue caused egregious 

harm. Accordingly, we reverse and remand for a new trial.

Background

When the complainant was 7 years old, her parents were divorced, and 

appellant Miguel Gomez was dating her mother. The complainant lived with her 

father, but she and her brother would visit her mother every other weekend, and at 

times Gomez would be the only adult watching her.

One day, the complainant called her mother at work and accused Gomez of 

touching her inappropriately. The mother responded by talking with both the 

complainant and Gomez on their front patio. Gomez responded to the allegations 

by saying that he did not know what the complainant was talking about.

The mother spoke to a friend, Crystal Rocha German, and she eventually 

decided to take the complainant to a hospital for a rape exam. A nurse performed a 

nonacute sexual assault exam and did not find any trauma. In response to the 

complainant’s statement that Gomez had touched her vagina, the nurse referred her 

to the Children’s Assessment Center.
3

The assessment center conducted forensic interviews with the complainant, 

her mother, and Gomez. The complainant told an interviewer that Gomez had 

touched her several times, but she discussed three separate incidents specifically. 

The first incident occurred after Gomez and the children returned home from a 

pool. Gomez washed the complainant with his hands, then laid a towel on the bed 

and put baby oil on her body. Gomez then put his finger inside “her middle.”

The second incident occurred while the complainant was asleep on her 

mother’s bed. Gomez picked her up to move her away from the bed, and the 

complainant said “she felt a hand go up her pants and a fingernail went into her 

middle.” The complainant’s mother later testified that she remembered this specific 

incident. She was present at the time, did not see Gomez touch the complainant 

inappropriately, and believed that this accusation was false. 

The third incident that the complainant described to the interviewer occurred 

during a game. The complainant said that while both of them were clothed, she and 

Gomez wrestled, and he spread her legs and their pelvises touched repeatedly. The 

interviewer admitted on cross-examination that this may not have been a sexual 

act. The interviewer noted that when discussing all three incidents, the complainant 

was “kind of mashing them together” and talking about them as if they were 

happening concurrently, rather than discussing each in isolation. 
4

The complainant later described a fourth incident that occurred when taking 

a shower with her sister, who was two years old at the time. The complainant again 

described Gomez washing her “middle part” with his hand and touching the inside 

of her vagina. The complainant did not describe this incident to the forensic 

interviewer, but she did recount it at trial. 

Gomez was indicted on one count of aggravated sexual assault of a child. At 

trial, the State elicited testimony from the complainant’s mother, the nurse who 

performed the initial nonacute exam, the assessment center interviewer, the 

complainant’s therapist, the complainant’s father, the complainant herself (who 

was then 12 years old), and an assessment center psychologist who served as an 

expert. The expert specifically testified about the effect of trauma on a child 

victim’s memories, and the potential resulting partial disclosure and issues with 

retelling incidents. The therapist testified that the complainant was consistent in 

accusing Gomez of assaulting her. 

Gomez rested without presenting evidence in his case-in-chief, and he did 

not testify during the guilt–innocence phase of trial. He did not ask the State to 

make an election as to which incident it wished to prosecute.

During closing argument, Gomez’s counsel argued that the complainant’s 

accusations were a “fantasy” that was brought about because of instability in her 

home and as a result of her dysfunctional family. Defense counsel focused on each 
5

particular incident in turn, specifically mentioning the mother’s testimony that the 

incident on the bed did not occur, and that complainant had answered on crossexamination that she did not remember several details about the other incidents. He 

made no argument relating to jury unanimity.

The State’s closing argument focused on retelling the several incidents that 

the complainant described and emphasizing that she had no motive for falsity. The 

prosecutor also made this statement:

When you go back and you read through the jury charge, 

one of the things that the defense wants you to get confused on 

is they want you to think that we’re limited to one of these 

instances, and to try to hang you up there. If four of you think 

that oil incident is beyond a reasonable doubt and four of you 

think that bed incident is beyond a reasonable doubt and the 

other four think that some other incident was beyond a 

reasonable doubt, then we have proved our case.

Because what is important is that all 12 of you believe 

that Miguel Gomez penetrated that seven-year-old girl’s vagina, 

and he did so with his finger. And if all 12 of you believe that, 

then we have proved our case beyond a reasonable doubt.

Gomez’s counsel did not object to this statement. The prosecutor additionally

referred to the expert’s testimony regarding a young child victim’s tendency to 

“mix dates . . . and mix instances.” 

The court’s instruction to the jury included the following paragraph on jury 

procedure:

As you retire to the jury room, you should select one of 

your members as your Foreman. It is his or her duty to preside 
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at your deliberations, vote with you, and when you have 

unanimously agreed upon a verdict, to certify to your verdict by 

using the appropriate form attached hereto and signing the same 

as “Foreman.”

There were no other instructions relating to jury unanimity in the charge. The court 

also instructed the jury that it could not consider evidence of “other crimes, 

wrongs, or acts against the child who is the victim of the alleged offense” unless 

they bore “on relevant matters, including: (1) the state of mind of the defendant 

and the child; and (2) the previous and subsequent relationship between the 

defendant and child, and for no other purpose.” The instructions stated that the 

State was not bound by the specific date alleged in the indictment, so long as “the 

offense, if any, was committed at any time within the period of limitations.” 

Neither the defense nor the State objected to the jury instructions.

During deliberation, the jury sent this request for clarification: “Is it our 

charge to determine that one or more of the specific instances related by [the 

complainant] did occur on or about the date mentioned in the indictment, or just 

that one or more of these instances did occur as testified to?” The court responded 

that the jury should refer to the court’s charge.

The jury convicted Gomez of aggravated assault of a child under the age of 

14. Gomez elected to have punishment assessed by the court, which assessed 

punishment at 25 years in prison. Gomez appealed.
7

Analysis

In his first three issues, Gomez asserts that the trial court erred by failing to 

instruct the jury that it must unanimously find that a single incident of the charged 

offense was proven beyond a reasonable doubt. Gomez argues that because of this, 

he was denied his constitutional and statutory rights to a unanimous verdict. The 

State responds that the lack of instruction did not cause Gomez egregious harm and 

that any other argument was not preserved due to the lack of objection at trial.

A jury must reach a unanimous verdict about a specific felony that the 

defendant committed. See Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 

2011). This requires the jury to “agree upon a single and discrete incident that 

would constitute the commission of the offense alleged.” Id. (quoting Stuhler v. 

State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). 

A non-unanimous verdict can occur when the State presents evidence that 

the same criminal conduct was repeated on several occasions but the results of the 

conduct differed, when the State charges one offense and presents evidence that the 

defendant committed that offense on multiple separate occasions, or when the State 

charges one offense and presents evidence of an offense that was committed at a 

different time but violated another provision of the same statute. Id. at 771–72. If 

the State presents evidence that the defendant committed the charged offense on 

multiple occasions, the judge’s charge can ensure unanimity by instructing the jury 
8

that its verdict must be unanimous as to a single offense among those presented. Id.

at 772. The instruction should not refer to any specific evidence in the case and 

should permit the jury to return a general verdict. Id. at 776.

A defendant may choose to require the State to elect a specific criminal act 

that it relies upon for conviction. See id. at 775; O’Neal v. State, 746 S.W.2d 769, 

772 (Tex. Crim. App. 1988). This choice is strategic and may be waived or 

forfeited. Cosio, 353 S.W.3d at 775. One reason that a defendant may refuse to 

elect is that the State will be jeopardy-barred from prosecuting the other offenses 

that were in evidence. See id.; Ex parte Pruitt, 233 S.W.3d 338, 346 (Tex. Crim. 

App. 2007). Even if the defendant does not require an election, the trial judge bears 

the ultimate responsibility to ensure unanimity through the instructions in the jury 

charge. See Cosio, 353 S.W.3d at 776.

A constitutional unanimity violation is subject to the constitutional harm 

standard when properly preserved by a timely and specific objection at trial. Id. at 

776; see TEX. R. APP. P. 44.2(a). Gomez did not preserve the constitutional or 

statutory issues through such a timely objection. See TEX. R. APP. P. 33.1(a). 

However, under the standard set forth in Almanza v. State, 686 S.W.2d 157 (Tex. 

Crim. App. 1984), charge error may never be waived by a defendant’s failure to 

object at trial. See id. at 171. When, as in this case, the constitutional and statutory 
9

issues have not been properly preserved, we analyze whether there is charge error 

and whether that caused egregious harm. See Cosio, 353 S.W.3d at 776.

When analyzing potential jury-charge error, our first duty is to decide 

whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If 

we determine that error exists, we analyze that error for harm. Id. When a 

defendant fails to object to the charge, we will not reverse for jury-charge error 

unless the record shows “egregious harm” to the defendant. Id. at 743–44; see also 

Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004). For egregious harm to 

be established, the charge error must have affected “the very basis of the case,” 

“deprive[d] the accused of a valuable right,” or “vitally affect[ed] his defensive 

theory.” Almanza, 686 S.W.2d at 172. To assess whether egregious harm occurred 

we look to the particular facts of the case, and consider: (1) the charge; (2) the state 

of the evidence; (3) the parties’ arguments; and (4) all other relevant information in 

the record. Cosio, 353 S.W.3d at 777; Hutch v. State, 922 S.W.2d 166, 171 (Tex. 

Crim. App. 1996). The Almanza analysis is fact-specific and done on a case-bycase basis. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013).

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

was charged with four felony counts of aggravated sexual assault of a child. See id.

at 769. The charge in the case generally instructed the jury that the verdict needed 

to be unanimous, and the defendant did not object to the charge. See id. at 770. The 
10

Court of Criminal Appeals stated that the charge impermissibly allowed the jury to 

rely on separate instances and render non-unanimous verdicts, and the standard 

unanimity instruction did not rectify the charge error. See id. at 774. 

After concluding that the defendant’s failure to object had waived error on 

all issues but harm in the jury charge, the Court analyzed the facts of the case for 

egregious harm. See id. at 777–78. The Court concluded that although the charge 

permitted non-unanimous verdicts, neither party nor the judge had added to the 

charge errors by telling the jury it did not have to be unanimous about the specific 

instance of criminal conduct. See id. at 777; compare Ngo, 175 S.W.3d at 750–51 

(prosecution and trial judge both misstated law regarding unanimous verdicts). 

Additionally, the Court determined that based on the state of the evidence, the 

defendant’s case “was essentially of the same character and strength across the 

board” and that had “the jury believed otherwise, they would have acquitted Cosio 

on all counts.” Cosio, 353 S.W.3d at 777–78. The Court held that because neither 

the arguments of the parties nor the state of the evidence showed actual harm, the 

defendant had not been egregiously harmed, and reversed the court of appeals. See 

id. at 778.

The Court of Criminal Appeals similarly reversed for lack of egregious harm 

in Arrington v. State, 451 S.W.3d 834 (Tex. Crim. App. 2015). As in Cosio, the 

defendant in Arrington was charged with several different sexual offenses. See id.
11

at 837–38. The charge did not require the jurors to be unanimous as to which 

separate criminal act constituted each count, but instead included only a generic 

unanimity instruction. Id. at 838. The Court noted that the court of appeals had 

failed to “consider the entire record” when looking to the state of the evidence in 

the case and had erred by disregarding evidence that had been admitted for all 

purposes at trial. Id. at 842–43. Concluding that the only factor that weighed in 

favor of finding egregious harm was the jury instructions themselves, the Court 

reversed. See id. at 845.

In this case, as in Cosio and Arrington, the trial court failed to instruct the 

jury in the jury charge that it needed to unanimously base its verdict on a single 

offense among those presented. See Arrington, 451 S.W.3d at 841–42; Cosio, 353 

S.W.3d at 772, 774. Therefore, we must analyze whether the charge error caused 

Gomez egregious harm.

I. Jury charge

The charge in this case permitted non-unanimous verdicts based on the 

evidence presented in the case. The State asserts that the remainder of the charge 

was correct, and it included language regarding unanimity. The State also argues 

that because it only brought one charge of aggravated sexual assault and the jury 

instructions specifically excluded extraneous offenses, this factor should weigh 

against egregious harm. We disagree.
12

As the Court of Criminal Appeals has repeatedly held, generic language 

regarding unanimity in the overall verdict is insufficient to ensure a unanimous 

verdict on a single incident. See Arrington, 451 S.W.3d at 841 (noting that even 

several generic requirements of unanimity cannot ensure a unanimous verdict 

when there is evidence of multiple incidents). A limiting instruction regarding 

extraneous acts is similarly inadequate to instruct the jury that it must unanimously 

agree on a single incident of criminal conduct that supports the charge. See Cosio, 

353 S.W.3d at 773–74. The extraneous act instruction given in this case would 

prevent the jury from considering crimes not charged in the indictment for 

irrelevant purposes, but it would not require the jury to find unanimously in favor 

of a single transaction that supports the indictment. 

Despite bringing only one count of sexual assault against Gomez, the State 

presented evidence of at least three distinct criminal offenses. Nothing in the jury 

charge required the jury to agree unanimously that the State had proven a particular 

offense beyond a reasonable doubt. See id. at 772. Therefore, we find that this 

factor weighs in favor of egregious harm. See Arrington, 451 S.W.3d at 841.

II. State of the evidence

The evidence of the offense in this case came nearly exclusively from oral 

testimony from those involved. In addition to the complainant’s own testimony, 

several family members testified about events surrounding her outcry, and both the 
13

interviewer who initially spoke to the complainant and an expert from the 

Children’s Assessment Center discussed what the complainant said in her 

statement and the psychological implications of her testimony. The therapist also 

testified about her consistency in naming Gomez and describing the alleged 

assaults.

As in Arrington, there was no medical or DNA evidence in this case that 

could corroborate the complainant’s claims. See id. The result in this case was that 

the sole evidence of the assault came from the complainant and those who had 

heard her talk about the incidents. However, unlike in Arrington, the defendant did 

not testify or put on any witnesses in this case, but instead he required the State to 

prove its burden. Cf. id. at 842. While in Arrington the jury faced a decision 

between two opposing narratives, and the defendant’s version was a full denial of 

the complainant’s story, in this case the jury could believe the complainant’s story 

entirely, in part, or not at all. Cf. id.

The complainant testified to four separate instances of possible sexual 

assault: once when Gomez took her away from bed, once in the shower, once when 

he applied baby oil to her, and once when they wrestled. The defense effectively 

controverted the bed incident through the testimony of the complainant’s mother, 

who stated that she had witnessed the event and did not believe the complainant 

was telling the truth. Gomez also cast doubt on the nature of the wrestling incident, 
14

as the forensic interviewer admitted on cross-examination that this may not have 

been sexual conduct. For the remaining incidents, trial counsel largely crossexamined the complainant and focused on the incomplete nature of her 

recollections. Therefore, unlike in Cosio, the defense was not “essentially of the 

same character and strength across the board.” 353 S.W.3d at 777.

However, the evidence ultimately persuaded the members of the jury to find 

that Gomez did commit the offense beyond a reasonable doubt on at least one 

occasion, or they would have acquitted him. See id. While the issues at trial were 

contested, we nonetheless conclude that the state of the evidence weighs slightly 

against a finding of egregious harm. See Cosio, 353 S.W.3d at 778; Arrington, 451 

S.W.3d at 844.

III. The parties’ arguments

The defense’s overall theory was espoused during closing arguments, when

trial counsel argued that the complainant’s version of events was a “fantasy” 

caused by stress associated with her dysfunctional family. Given the verdict in the 

case, the jury apparently rejected this theory and believed the complainant at least 

in part, or it would not have convicted Gomez. See Cosio, 353 S.W.3d at 777–78. 

However, defense counsel did not make any argument regarding unanimity.

The only direct reference to unanimity during Gomez’s trial came from the 

prosecutor in his closing argument:
15

When you go back and you read through the jury charge, 

one of the things that the defense wants you to get confused on 

is they want you to think that we’re limited to one of these 

instances, and to try to hang you up there. If four of you think 

that oil incident is beyond a reasonable doubt and four of you 

think that bed incident is beyond a reasonable doubt and the 

other four think that some other incident was beyond a 

reasonable doubt, then we have proved our case.

Because what is important is that all 12 of you believe 

that Miguel Gomez penetrated that seven-year-old girl’s vagina, 

and he did so with his finger. And if all 12 of you believe that, 

then we have proved our case beyond a reasonable doubt.

(Emphasis supplied.) The prosecutor’s argument was a clear misstatement of the 

law, one that capitalized on the jury charge’s failure to instruct the jury regarding 

unanimity, and instructing them the opposite of what the law required. See Ngo, 

175 S.W.3d at 750 (prosecutor’s statement that the jury could “mix and match” 

offenses was misstatement of the law and major factor in finding egregious harm). 

This argument occurred shortly before the jury deliberated, and it was not 

corrected or ameliorated in any way—to a reasonable jury member, it could have 

appeared to be the law.

The only time the jury received any instruction regarding the necessity of 

unanimously finding a single incident of conduct, it was affirmatively told it did 

not need to do so. See id. at 751. We therefore conclude that this factor weighs 

strongly in favor of a finding of egregious harm. See id. at 750–52; cf. Cosio, 353 

S.W.3d at 777 (when neither of the parties nor the trial judge added to the charge 
16

error by telling the jury it did not have to be unanimous, factor was not in favor of 

egregious harm).

IV. Other relevant information in the record

Gomez argues that the jury’s request for clarification is additional 

information that weighs in favor of egregious harm. The jury sent a request for 

clarification during deliberation asking: “Is it our charge to determine that one or 

more of the specific instances related by [the complainant] did occur on or about 

the date mentioned in the indictment, or just that one or more of these instances did 

occur as testified to?” The court responded that the jury should refer to the court’s 

charge. Gomez claims that the “one or more” language was a reference to whether 

the jury had to agree on a single incident because it had heard evidence of multiple 

acts. The State contends that this was only a question about whether the date in the 

indictment was a necessary element of the charge.

We agree with the State’s evaluation of the jury’s question. The jury did not 

appear to be asking for clarification as to which instance it was intended to find. 

Instead, it was asking for clarification as to whether it had to find that the incident

used for conviction occurred on the date mentioned in the indictment. We conclude 

that this factor does not weigh either for or against egregious harm. See Cosio, 353 

S.W.3d at 777.

* * *
17

When examining all four factors to determine egregious harm, two of them 

weigh heavily in favor of finding reversible error in this case. While the state of the 

evidence is slightly against reversal, the charge error combined with the State’s 

misstatement of the law enabled the jury to find Gomez guilty of some

combination of the various incidents presented at trial, rather than a single incident 

of conduct. See Ngo, 175 S.W.3d at 752.

Accordingly, we conclude that the charge error caused Gomez egregious 

harm by depriving him of his valuable right to a unanimous jury verdict. See id. 

Because egregious harm demands reversal, we need not reach Gomez’s remaining 

issues.

Conclusion

We reverse and remand for a new trial.

Michael Massengale

Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).