PD-0038-18 04/18/2018
1. “Does a defendant preserve error regarding juror unanimity when the instruction requested is both an incorrect statement of the law and would not have corrected the error complained of on appeal?”
2. “Does a defendant suffer harm when a jury charge allows for non-unanimous verdicts as to contact or penetration of either a child’s sexual organ or anus, but the evidence is overwhelming as to one charge?”
French was charged with aggravated sexual assault of a child under fourteen. The charge asked the jury to find that he “intentionally or knowingly caused the contact with or penetration of the anus of [victim] with his male sexual organ or . . . caused contact with or penetration of the female sexual organ of [victim] with his male sexual organ[.]” The jury was told that it “need not all agree on the manner in which the sexual assault was committed.” French objected to “that part of the charge” and requested that it read, “you must all agree on the manner in which the sexual assault was committed.” This request was denied. French was convicted.
On appeal, French argued the charge violated his right to a unanimous verdict with respect to whether he contacted or penetrated the victim’s 1) anus or 2) sexual organ. The court of appeals agreed and, because he preserved his complaint, reviewed for “some harm.” Although it acknowledged that the State’s evidence focused primarily on the victim’s anus, it could not say French suffered no harm because some evidence referred to her sexual organ.
The State petitions on two grounds. First, it argues that French’s objection failed to tell the trial court what he wanted or why he was entitled to it. As shown by Jourdan v. State, 428 S.W.3d 86 (Tex. Crim. App. 2014), not all manners and means of committing an aggravated sexual assault are distinct offenses requiring unanimity. French’s objection more naturally referred to a choice between contact or penetration rather than between anus or sexual organ, and Jourdan does not require unanimity on the former. His requested instruction would thus have been improper and unrelated to his complaint on appeal. As such, reversal should have required a showing of egregious harm. Regardless, the State argues, French suffered no actual harm under either standard: the evidence and arguments overwhelmingly focused on his contact with or penetration of the victim’s anus with his sexual organ, there was no evidence adduced regarding contact with or penetration of the victim’s sexual organ with his sexual organ, and French denied any wrongdoing.
