JOSE ALFREDO MENDOZA v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice O'Neill

Appellant appeals his conviction for aggravated sexual assault of a child.   After the jury found appellant guilty, it assessed punishment at twelve years' confinement.   In a single point of error, appellant complains the trial court's charge did not require the jury's verdict to be unanimous.   For the following reasons, we affirm the trial court's judgment.

The grand jury indicted appellant for aggravated sexual assault of a child.   At trial, the State presented evidence of two acts that fit the offense as alleged in the indictment, specifically, that appellant penetrated the child's sexual organ with his finger.   The charge instructed the jury that its verdict had to be unanimous, but it did not expressly inform the jury that they had to unanimously agree on which act constituted the offense.   Thus, the possibility existed that some jurors may have believed one act constituted the offense and others may have believed the other act constituted the offense.   Appellant did not object to the charge at trial.   He nevertheless asserts the error caused him egregious harm because it is impossible to tell if the jury's verdict was unanimous.

The State argues appellant waived error by not requesting it be required to elect what specific act it was relying on for conviction.   However, appellant complains of charge error, not the State's failure to elect.   Shortly after the briefing in this case was complete, the Texas Court of Criminal Appeals decided Cosio v. State, 353 S.W.3d 766, 774 (Tex.Crim.App.2011).   In Cosio, under similar circumstances, the Court held a trial court's failure to expressly instruct the jury that it must be unanimous as to what criminal conduct constituted the offense is charge error.  Cosio, 353 S.W.3d at 774.   Consequently, an appellant can complain about such error on appeal even if he did not object to the charge at trial.  Id. at 775–776.   However, to obtain a reversal, the record must show the error was “egregious and created such harm that [his] trial was not fair and impartial.”  Id.

An egregious harm determination must be based on a finding of actual rather than theoretical harm.  Id. at 777.   For actual harm to be established, the record must show the charge error affected the very basis of the case, deprived the defendant of a valuable right, or vitally affected a defensive theory.   Id. When assessing harm based on the particular facts of the case, we consider:  (1) the charge, (2) the state of the evidence, including contested issues and the weight of the probative evidence, (3) the parties' arguments, and (4) all other relevant information in the record.  Casio, 353 S.W.3d at 777.

Without reference to the actual state of the record, appellant asserts he suffered egregious harm because the jury was permitted to consider both instances of assaultive conduct in their deliberation.   In essence, he complains that it is theoretically possible the jury was not unanimous.¹  However, in determining harm, we focus on the actual, not theoretical harm.   In this case, the potential for harm flows from the possibility that—as a practical matter—the jurors were not unanimous as to which act constituted the offense.   The charge in this case did generally instruct the jury that its verdict had to be unanimous.   Although it erroneously failed to inform the jury it had to be unanimous about what specific instance constituted the offense, neither the parties, nor the trial court, instructed the jury otherwise, i.e., that it did not have to agree about which specific instance of conduct appellant committed.   See Cosio, 353 S.W.3d at 777 (noting the absence of such comments does not weigh in favor of finding egregious harm).   Appellant's defense was that the child's mother was lying to try to cover something else up and that the child was lying to get attention and to please her mother and the CPS investigator.   Appellant's trial strategy was thus that he did not commit any of the alleged acts.   The jury, however, by its verdict found the child to be credible.   Based on the record before us, we cannot conclude there is a significant question as to unanimity.   Appellant also suggests he was harmed because it allowed the State to argue “the complainant's testimony of ‘multiple times' of assaultive conduct was actually a showing of credibility on the part of the child.”   However, it is not disputed that evidence of multiple assaults was admissible.   Thus, we fail to see how the error contributed to the harm alleged.   Based on the record before us, we cannot conclude appellant suffered egregious harm or was denied a fair and impartial trial.   See Cosio, 353 S.W.3d at 777–78.   We overrule appellant's sole point of error and

affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

JOSE ALFREDO MENDOZA, Appellant

No. 05–10–01088–CR V.

THE STATE OF TEXAS, Appellee

Appeal from the 203rd Judicial District Court of Dallas County, Texas.   (Tr.Ct.No.F08–50084–P).

Opinion delivered by Justice O'Neill, Justices Richter and Francis participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered May 11, 2012.

/Michael J. O'Neill/

MICHAEL J. O'NEILL

JUSTICE

FOOTNOTES

FN1. Of course, that is why there is error in the first instance..  FN1. Of course, that is why there is error in the first instance.

MICHAEL J. O'NEILL JUSTICE