Opinion
NO. 14-17-00006-CR
04-24-2018
JAMES MICHAEL MIRANDA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court Galveston County, Texas
Trial Court Cause No. 14-CR-2730
MEMORANDUM OPINION
Appellant James Michael Miranda challenges his conviction for aggravated sexual assault of a child on the grounds that the trial court failed to sua sponte submit jury instructions that would assure unanimity of a guilty verdict. We agree with appellant that the trial court's jury charge impermissibly allowed the potential for a non-unanimous finding as to the charged offense, but we nonetheless conclude the error did not result in egregious harm. Accordingly, we affirm the judgment.
Background
The complainant, Amanda, lived in Galveston County with her mother, half-brother and half-sister, and with appellant, who was her step-father. Appellant touched Amanda inappropriately, including touching her breasts and her vagina, for about a year when Amanda was thirteen years old. After Amanda revealed to a friend that appellant had been improperly touching her, Texas City Police began investigating. Ultimately, a grand jury indicted appellant for aggravated sexual assault of a child, specifically "intentionally or knowingly caus[ing] the penetration of the sexual organ of [Amanda], a child who was then and there younger than 14 years of age, by [appellant]'s finger." Appellant pleaded not guilty.
To protect the complainant's privacy, we identify her by a pseudonym, "Amanda."
At the time of appellant's trial, Amanda was seventeen years old. The events leading to appellant's arrest occurred in 2013, when Amanda was thirteen years old.
Amanda testified live at appellant's jury trial. She stated that appellant touched her inappropriately about twice a month on her breasts and vagina. She testified concerning two particular events. Amanda's description of the first incident occurred in response to questioning by the State regarding an occasion during which appellant's hand "actually went into" Amanda's vagina. Amanda described the event as follows. Appellant picked Amanda up from school and brought her home while Amanda's mother was at work and her half-sister was not home. Amanda sat on a chair in the living room, and appellant sat down with her. Amanda stated that she "kind of knew where it was going . . . [b]ecause there ha[d] been times before this incident." According to Amanda, "[I]t all happened so fast. I couldn't just run away." Amanda did not testify to further details concerning this incident, but Amanda's outcry witness, a forensic interviewer with the Children's Assessment Center, provided the following information from Amanda's forensic interview. Appellant sat down next to Amanda in a chair in the living room, took her shoulder, and pushed her down. Amanda tried to resist at first, but appellant touched her on the inside of her clothes. Appellant stopped when he got a phone call.
Amanda testified concerning another occasion when appellant touched her during the night. According to Amanda, she was sleeping in her half-sister's bedroom when appellant came in and laid down across her chest. Appellant reached inside Amanda's pants and penetrated Amanda's vagina with his finger. Amanda stated that her mother came into the room and asked what appellant was doing. Amanda testified that appellant "popped up and said he was just telling us goodnight." Amanda confirmed to her mother that appellant had been "telling us goodnight." Amanda also described this incident to the forensic interviewer, explaining that "she woke up to his hands being in her pants with his hand inside her vagina."
Amanda described another incident to the forensic interviewer. This time, Amanda and her half-sister were laying in appellant's room when appellant tried to touch "her on the butt by sticking his hand down the back of her pants." Amanda got up and left; she went into her room. Appellant followed her into her room and put his hands inside the front of her pants.
The trial court instructed the jury that it must find appellant guilty if it found beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of the sexual organ of Amanda, a child younger than fourteen years of age, by appellant's finger. The charge's only reference to a unanimity requirement was the standard wording advising the jury that it must unanimously agree upon a verdict. There was no additional language in the charge informing the jury that its verdict must be unanimous with respect to a single incident of criminal conduct. Appellant's trial counsel did not object to the jury charge on the basis that it did not ensure a unanimous verdict. However, during the charge conference and outside the presence of the jury, the prosecuting attorney noted that defense counsel had asked the State to "make an election." The prosecutor informed the trial court and defense counsel that the State was "electing to use the allegation in which the mom walked into the room at night and the victim stated that her father was touching her when the mom walked in." Although there was discussion concerning how the prosecutor should mention the election in closing argument, defense counsel did not object to the jury charge.
A defendant may choose to require the State to elect a specific criminal act that it relies upon for conviction. See Cosio v. State, 353 S.W.3d 766, 775 (Tex. Crim. App. 2011); 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. A defendant may decide against demanding an election because the State will be jeopardy-barred from prosecuting the other offenses that were in evidence. See id.
The jury convicted appellant as charged, and, after a punishment hearing, sentenced appellant to seven years' incarceration in the Texas Department of Criminal Justice, Institutional Division. The trial court signed a judgment in accord with the jury's verdict. Appellant filed a motion for new trial, which the trial court denied. This appeal timely followed.
Analysis
In a single issue, appellant urges that the trial court "erred in failing to submit jury instructions which would ensure unanimity of a guilty verdict, in violation of Texas constitutional and statutory law." Because the jury heard evidence of multiple incidents, appellant contends "there was an unacceptable risk that all twelve jurors did not agree that one particular 'unit of prosecution' was proved beyond a reasonable doubt." Here, the application paragraph tracked the language of the indictment, and the charge instructed that the offense date was "on or about September 15, 2013."
We begin our analysis of appellant's issue with the appropriate standard of review.
A. Governing Law and Standard of Review
Under Texas law, a jury must reach a unanimous verdict about the specific crime that the defendant committed. E.g., Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). As relevant here, non-unanimity may occur when (1) the charge fails to properly instruct the jury that its verdict must be unanimous and (2) the State charges one offense and presents evidence that the defendant committed the charged offense on multiple but separate occasions. See id. at 771-72. This is so because each incident of criminal conduct individually establishes a distinct offense or "unit of prosecution." Id. at 772. Confronted with this circumstance, a defendant may demand that the State elect which incident it chooses to rely upon for conviction, and making such an election, when communicated to the jury, would help ensure jury unanimity.
However, regardless whether or not a defendant demands such an election, the charge, to ensure unanimity, must nonetheless "instruct the jury that its verdict must be unanimous as to a single offense or unit of prosecution among those presented." Id. "[G]uaranteeing unanimity is ultimately the responsibility of the trial judge because the judge must instruct the jury on the law applicable to the case." Id. at 776. The trial judge is therefore obligated to submit a charge that does not allow for the possibility of a non-unanimous verdict:
This means that even when the State is not required to elect, the trial judge must craft a charge that ensures that the jury's verdict will be unanimous based on the specific evidence presented in the case. To
guarantee unanimity in this context, we have stated that 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.
Evaluating alleged jury charge errors in the criminal context involves a two-step process. We first determine whether the charge was erroneous. See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error occurred and appellant objected to the error at trial, reversal is required if the error "is calculated to injure the rights of the defendant," which means that there is "some harm." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If, as here, the defendant did not object to the error, we will reverse only if the error was so egregious and created such harm that the defendant was deprived of "a fair and impartial trial." Barrios, 283 S.W.3d at 350 (internal quotation omitted). Jury charge errors that meet the "high and difficult standard" of causing egregious harm are those that "affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory." See State v. Ambrose, 487 S.W.3d 587, 597 (Tex. Crim. App. 2016); Cosio, 353 S.W.3d at 777.
B. Charge Error
Under the law applicable to this case, the State was required to establish beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of Amanda's sexual organ with appellant's finger. See Tex. Penal Code § 22.021(a)(1)(B)(i).
Amanda testified generally that appellant frequently had touched her "inappropriately" on her breasts and vagina. These vague references to inappropriate touching may have supported a conviction for indecency with a child, which involves "sexual contact," meaning "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child." Tex. Penal Code § 21.11(a)(1), (c)(1). In fact, the key distinction between aggravated sexual assault and indecency with a child by contact is that aggravated sexual assault requires penetration of the sexual organ, while indecency with a child may be proved by simple touching of the child's genitals. See Evans v. State, 299 S.W.3d 138, 142 (Tex. Crim. App. 2009); compare Tex. Penal Code § 22.021(a)(1)(B)(i), (a)(2)(B) (defining aggravated sexual assault of a child), with Tex. Penal Code § 21.11(a)(1), (c) (defining indecency with a child by contact). But appellant was not charged with indecency with a child in this case, nor was this lesser-included offense offered as an option in the jury charge.
Appellant contends that Amanda provided detailed testimony about multiple incidents, each "involving the same kind of touching by [appellant] and both occurring in Galveston County." We agree that the jury heard evidence of more than one incident of criminal conduct (or unit of prosecution) that meets all of the essential elements of the single charged offense. Our review of the record indicates that Amanda described two incidents during which appellant penetrated her sexual organ: the first occurred in the living room when appellant picked her up from school, described supra; and the second incident, also described above, occurred in her half-sister's room at night when her mother walked in. The jury could have relied on either of these two incidents of criminal conduct, each of which constituted a separate unit of prosecution, committed by appellant to find him guilty for the single count of aggravated sexual assault of a child. See, e.g., Cosio, 353 S.W.3d at 774.
As noted above, the State elected to rely upon the second incident that occurred in the bedroom to support a conviction.
The jury charge, however, did not contain language that ensured the verdict would be unanimous as to a single incident of criminal conduct. Thus, we conclude that the charge in this case impermissibly allowed for the possibility that the jury rendered a non-unanimous verdict. See Francis v. State, 36 S.W.3d 121, 124-25 (Tex. Crim. App. 2000) (op. on reh'g); Flores v. State, 513 S.W.3d 146, 155-57 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) .
We consider next whether appellant was egregiously harmed.
C. No Egregious Harm
A constitutional unanimity violation is subject to the constitutional harm standard when properly preserved by a timely and specific objection at trial. Cosio, 353 S.W.3d. at 776; see Tex. R. App. P. 44.2(a). But appellant did not preserve the constitutional or statutory issues through such a timely objection. See Tex. R. App. P. 33.1(a); Cosio, 353 S.W.3d at 776; see also Flores, 513 S.W.3d at 157-58 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) ("Failure to object to the unanimity error in the jury charge forfeits the constitutional unanimity component of the complaint."). Because appellant did not object to the charge error, we will reverse only if appellant was egregiously harmed. See Cosio, 353 S.W.3d at 776; Barrios, 283 S.W.3d at 350; Flores, 513 S.W.3d at 157-58.
Egregious harm "must be based on a finding of actual rather than theoretical harm." Cosio, 353 S.W.3d. at 777 (citing Ngo, 175 S.W.3d at 750); see also Warner v. State, 245 S.W.3d 458, 464 (Tex. Crim. App. 2008). To obtain a reversal, the record must show the error "affected 'the very basis of the case,' 'deprive[d] the defendant of a valuable right,' or 'vitally affect[ed] a defensive theory.'" Cosio, 353 S.W.3d at 777 (alterations in original) (quoting Almanza, 686 S.W.2d at 171). In determining whether egregious harm is shown, we look at "1) the charge itself; 2) the state of the evidence including contested issues and the weight of the probative evidence; 3) arguments of counsel; and 4) any other relevant information revealed by the record of the trial as a whole." Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); accord Cosio, 353 S.W.3d at 777. We consider each of these factors in turn.
1. The charge
Here, as noted above, the court charged the jury on guilt based on the same manner and means as set forth in the indictment, i.e., by penetrating the sexual organ of a child younger than fourteen years of age. The jury charge additionally included general language that the jury must reach its verdict unanimously. But it did not specifically instruct the jury that it must reach a unanimous verdict as to the specific instance of conduct for the alleged offense. "Generic statements regarding unanimity, like the one contained in the jury charge here, are insufficient to prevent a non-unanimous verdict." Flores, 513 S.W.3d at 158 (citing Casio, 353 S.W.3d at 773-74.
Accordingly, this factor weighs in favor of egregious harm. See id. (citing Arrington v. State, 451 S.W.3d 834, 841 (Tex. Crim. App. 2015)); see also Smith v. State, 515 S.W.3d 423, 430 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd).
2. The evidence
We next turn to the state of the evidence to determine if the evidence made it more or less likely that the jury charge caused appellant egregious harm. See Arrington, 451 S.W.3d at 841; Smith, 515 S.W.3d at 430. The State presented no medical evidence that Amanda had been sexually assaulted. Instead, the evidence included, among other things, testimony from Amanda, the outcry witness, two of Amanda's friends to whom Amanda had disclosed that appellant had inappropriately touched her, Amanda's mother, and appellant. Amanda and her outcry witness testified regarding the incidents in which appellant sexually assaulted Amanda, as well as other incidents involving inappropriate touching. Appellant unequivocally denied that any sexual contact with Amanda occurred, and his argument focused on issues with Amanda's credibility, the lack of any physical evidence of sexual assault, and inconsistencies between Amanda's description of the assault and her statements to the outcry witness.
The outcry witness mentioned that, during Amanda's interview at the Children's Assessment Center, Amanda disclosed a third incident during which appellant penetrated her vagina with his hand. But Amanda did not testify that appellant's hand penetrated her vagina when she described this incident to the jury. The jury resolved any inconsistencies between Amanda's testimony and her statements to the outcry witness in Amanda's favor, and any differences between Amanda's testimony and that of the outcry witness likely had no effect on the unanimity of the jury's verdict. See Arrington, 451 S.W.3d at 843.
As discussed above, Amanda testified regarding two instances in which appellant penetrated her vagina, although she provided more details concerning the second incident that occurred in her half-sister's bedroom. Appellant's defense was that he did not commit any offense at all. He also challenged Amanda's credibility. Appellant's defense was "essentially of the same character and strength across the board." Cosio, 353 S.W.3d at 778. The jury was not persuaded that appellant did not sexually assault Amanda; had the jury believed otherwise, it would have acquitted appellant. See id. "In this case, the jury either believed Appellant or believed the victim." Taylor v. State, 332 S.W.3d 483, 493 (Tex. Crim. App. 2011); see also Arrington, 451 S.W.3d at 842; Cosio, 353 S.W.3d at 777-78; Smith, 515 S.W.3d at 430-31 (citing Jourdan v. State, 428 S.W.3d 86, 98 (Tex. Crim. App. 2014)); Rodriguez, 446 S.W.3d at 532 (no egregious harm when complainant testified about specific incidents and defendant did not claim he only committed certain acts, but instead, asserted he committed no acts); Ruiz v. State, 272 S.W.3d 819, 826-27 (Tex. App.—Austin 2008, no pet.) (state of evidence weighed against egregious harm because defendant did not argue that he was guilty of only some of complainant's allegations, but instead urged that he had not committed any of the alleged conduct, leaving the jury with "all-or-nothing" decision). In other words, the jury believed the State proved beyond a reasonable doubt that appellant committed the charged offense. Even though there existed evidence of more than one incident satisfying the elements of the offense, appellant's defense made no distinction between either of them, so it is unlikely the jury would have been led to accept Amanda's version of events as to one incident and not the other.
Under these circumstances, the state of the evidence weighs against a finding egregious harm. See Arrington, 451 S.W.3d at 842; Cosio, 353 S.W.3d at 778; Taylor, 332 S.W.3d at 493; Smith, 515 S.W.3d at 430-31; Rodriguez, 446 S.W.3d at 532.
3. Argument
Turning to the parties' closing arguments, we consider "whether any statements made by the State, appellant, or the court exacerbated or ameliorated error in the charge." Smith, 515 S.W.3d at 431. First, we note that neither the State nor defense counsel made any reference to a unanimity requirement during closing argument. Generally, then, this factor would be considered neutral concerning a finding of egregious harm because no one exacerbated or ameliorated the error in the charge. See, e.g., Smith, 515 S.W.3d at 431 (citing Arrington, 451 S.W.3d at 844; Cosio, 353 S.W.3d at 777).
But here, as noted above, outside the presence of the jury, defense counsel requested that the State make an election prior to closing. The State notified the trial court and appellant that it would proceed on the incident that occurred in Amanda's half-sister's bedroom. Consistent with its election, the State's argument focused on the specific bedroom incident; the State did not mention the living-room incident during closing. Defense counsel also focused its argument solely on the bedroom incident, as well as challenging Amanda's credibility.
As both parties focused their arguments on the single incident occurring in the bedroom, the arguments do not suggest that some jurors would have based their verdict on the living-room incident whereas others on the bedroom incident. Thus, we conclude that this factor weighs against a finding of egregious harm. Cf. Linares-Lainez v. State, No. 01-17-00232-CR, 2018 WL 1161553, at *7 (Tex. App.—Houston [1st Dist.] Mar. 6, 2018, no pet. h.) (mem. op., not designated for publication) (noting that because only one of two potential units of prosecution was discussed by parties during closing argument, this factor weighed against a finding of egregious harm); Rosales v. State, No. 03-15-00735-CR, 2017 WL 5247497, at *7 (Tex. App.—Austin Nov. 10, 2017, pet. filed) (mem. op., not designated for publication) (concluding that arguments of parties, despite mentioning extraneous offenses, weighed against finding of egregious harm).
4. Any other relevant information
Finally, we review the record for any other relevant information requiring consideration, such as any requests for clarification during jury deliberations. See Smith, 515 S.W.3d at 431 (citing Flores, 513 S.W.3d at 161). None of the jury communications show that the jury sought any clarification regarding unanimity. Thus, this factor does not weigh in favor of or against finding egregious harm. See id.
* * *
In sum, of the four factors, only the first—the charge itself—weighs in favor of a finding of egregious harm. Cf. id.; cf. also Arrington, 451 S.W.3d at 845; Cosio, 353 S.W.3d at 777-78; Flores, 513 S.W.3d at 161. Thus, we cannot say that appellant was egregiously harmed by the charge error because the instruction did not affect the basis of his case or his defensive theories, or deprive him of a valuable right. See Arrington, 451 S.W.3d at 845; Cosio, 353 S.W.3d at 777-78.
We overrule appellant's sole appellate issue.
Conclusion
Having overruled appellant's issue, we affirm the trial court's judgment.
/s/ Kevin Jewell
Justice Panel consists of Justices Christopher, Donovan, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).