MEMORANDUM OPINION

Appellant Rainon Forrest Eaves was found guilty of multiple counts of indecency with a child and sexual assault of a child and was sentenced to twenty-five years’ imprisonment.

In three issues, he challenges the unanimity of the jury’s verdict and the jury charge. Based on the following reasons, we will affirm the trial court’s judgment.

BACKGROUND 1

Appellant was charged with two counts of indecency with a child by contact and eight counts of sexual assault of a child, arising from several incidents when Appellant had sexual intercourse, oral sexual intercourse, or sexual contact with a fourteen-year-old during several months in 2020. The trial on the merits began on October 26, 2021.

[Appellant] did then and there intentionally or knowingly cause the sexual organ of [the victim], a child younger than 17 years of age, to contact the male sexual organ of the said [Appellant] . . . .”

Count 7: “[Appellant] did then and there intentionally or knowingly cause the penetration of the mouth of [the victim], a child who was younger than 17 years of age, by the male sexual organ of the said [Appellant], OR . . . . [Appellant] did then and there intentionally or knowingly cause the mouth of [the victim], a child who was younger than 17 year of age, to contact the male sexual organ of the said [Appellant] . . . .”

Count 9: “[Appellant] did then and there intentionally or knowingly cause the penetration of the anus of [the victim], a child who was younger than 17 years of age, by the male sexual organ of the said [Appellant], OR . . . . [Appellant] did then and there intentionally or knowingly cause the anus of [the victim], a child who was younger than 17 years of age, to contact the male sexual organ of the said [Appellant] . . . .”

(Emphases added). Each of those counts also included the following language: “The jury must be unanimous about the incident, if any, that constitutes the conduct alleged in” the applicable count. Appellant argues that the jury charge for those counts charged him with both a “contact” offense and a “penetration” offense in the disjunctive, and therefore there was a possibility of a

non-unanimous verdict by the jury as to any of those counts.^[4] The State responds that the “separate offenses” are merely different “manner and means” for committing one offense and that Appellant failed to show any harm occurred.

The Texas Constitution requires a unanimous jury verdict in felony criminal cases. Tex. Const. art. V, § 13; see Stuhler v. State, 218 S.W.3d 706, 716 (Tex. Crim. App.

2007). “Unanimity in this context means that each and every juror agrees that the defendant committed the same, single, specific criminal act.” Ngo v. State, 175 S.W.3d 738, 745 (Tex.

Crim. App. 2005). “When the State charges different criminal acts, regardless of whether those acts constitute violations of the same or different statutory provisions, the jury must be instructed that it cannot return a guilty verdict unless it unanimously agrees upon the commission of any one of these criminal acts.” Id. at 744. “The unanimity requirement is undercut when a jury risks convicting the defendant on different acts, instead of agreeing on the same act for a conviction.” Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000) (en banc).

Based on the record before us, the jury charge did not permit a less-than- unanimous verdict. In this case, all members of the jury must have unanimously agreed that

Appellant committed any of the following acts: contacted or penetrated the child’s sexual organ

with his mouth or tongue (Counts IV), Tex. Penal Code § 22.01(a)(2)(A), (C); contacted or penetrated the child’s sexual organ with his sexual organ (Counts V, VI), id.; contacted or penetrated the child’s mouth with his sexual organ (Count VII), id. § 22.01(a)(2)(B), (E); or contacted or penetrated the child’s anus with his sexual organ (Count IX), id. § 22.01(a)(2)(A), (C). Although Appellant complains that “contact” and “penetration” are two distinct and separate offenses under the statute, 5 “the requirement of jury unanimity is not violated by a jury

charge that presents the jury with the option of choosing among various alternative manner and means of committing the same statutorily defined offense.” Jourdan v. State, 428 S.W.3d 86, 94

(Tex. Crim. App. 2014). In particular, “[w]hen both contact and penetration occur in a single sexual act, involving a single orifice, contact is subsumed by penetration.” French v. State, 563 S.W.3d 228, 235 (Tex. Crim. App. 2018); see also Jourdan, 428 S.W.3d at 98 (“We have already discounted the possibility of egregious harm with respect to penile contact versus penile

penetration because contact is subsumed by penetration, and every juror would have, of necessity, at least found contact.”); Vick v. State, 991 S.W.2d 830, 834 n.2 (Tex. Crim. App.

1999) (“An allegation of ‘penetration’ of the sexual organ overlap an allegation of ‘contact’ of the sexual organ because penetration of the genitals necessarily includes contact.”).

Even assuming some of the jurors believed Appellant was guilty of contact but not penetration and the other jurors believed he was guilty of penetration, all the jurors

necessarily believed that contact had occurred. See, e.g., Hatter v. State, No. 11-09-00091-CR, 2011 WL 1640370, at *4 (Tex. App.—Eastland Apr. 28, 2011, pet. ref’d) (mem. op., not

designated for publication) (explaining that every juror who believed appellant penetrated the victim’s sexual organ “also necessarily believed that antecedent contact had occurred”).

Moreover, the precedent cited by Appellant is distinguishable because that precedent involved disjunctive charges involving separate, distinct offenses. See, e.g., Francis, 36 S.W.3d at 125

(distinguishing contact offenses involving breast touching and genital touching). Accordingly, the trial court’s disjunctive submission of the “contact” and “penetration” offenses in the jury charge did not result in the possibility of a non-unanimous verdict as to those counts.

Appellant’s first issue is overruled.

JURY CHARGE LIMITING INSTRUCTION

In his second issue, Appellant argues that the trial court erred by including the following instruction in the jury charge: Members of the jury, regarding evidence that the defendant has committed a separate offense of sexual abuse, you cannot consider such evidence for any purpose unless you first find from the evidence presented beyond a reasonable doubt that the defendant committed that separate offense of sexual abuse.

Therefore, if the State has not proven the defendant’s commission of a separate offense of sexual abuse beyond a reasonable doubt, or if you have a reasonable doubt thereof, you shall not consider that evidence for any purpose.

If you find the State has proven the defendant’s commission of a separate offense of sexual abuse beyond a reasonable doubt, you may consider that evidence for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.

(Emphases added). Appellant argues that the “separate offense of sexual abuse” language in the instruction encourages the jurors to consider extraneous “sexual abuse” offenses other than the charges against him for indecency with a child and sexual assault of a child.

When reviewing a claim of error in the jury charge, we first determine whether error exists. Ngo, 175 S.W.3d at 743; accord McCall v. State, 635 S.W.3d 261, 265–66 (Tex.

App.—Austin 2021, pet. ref’d). If error exists, then we undertake a harm analysis. Ngo, 175 S.W.3d at 743; McCall, 635 S.W.3d at 265–66. “[A]ll alleged jury-charge error must be

considered on appellate review regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Appellant acknowledges that he did not object to

the charge about this instruction, and therefore insofar as we need to undertake a harm analysis, the error will only require reversal if Appellant shows “egregious harm.” Ngo, 175 S.W.3d at

743–44. There must be “actual, rather than merely theoretical, harm” that affects “‘the very basis of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive theory.’” Id. at 750 (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

“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.” Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011) (quoting Hutch, 922 S.W.2d at 171).

There is no error on the record before us. Article 38.37 of the Texas Code of Criminal Procedure governs the admissibility and use of certain extraneous evidence of “other crimes, wrongs, or acts committed by the defendant against the child who is the victim.” Tex.

Code Crim. Proc. art. 38.37, § 1(b). Appellant concedes that there was no evidence of extraneous “sexual abuse” offenses presented at the trial; rather, the only evidence concerning

“sexual abuse” before the jury was the evidence presented as part of the State’s case on the charged offenses. See Tex. Penal Code §§ 21.11 (Indecency With a Child); 22.011 (Sexual

Assault). Appellant complains that the “sexual abuse” terminology in the instruction misinforms the jury because he claims that language invokes a different criminal offense (continuous sexual abuse of a young child) that was not a charged offense in the indictment. See id. § 21.02

(Continuous Sexual Abuse of Young Child or Disabled Individual). But the jury was not instructed about that statute, that criminal offense, or any definition of “sexual abuse” based on that statute or offense. Cf. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (“We generally presume the jury follows the trial court’s instructions in the manner presented.”).

Moreover, an act of “sexual abuse” in Section 21.02(c) of the Texas Penal Code is defined as

both acts of indecency with a child and sexual assault of a child, both offenses charged in the indictment. See Tex. Penal Code § 21.02(c)(2)(3) (including indecency with child and sexual assault of child as acts qualifying as “sexual abuse”); Abuse, Black’s Law Dictionary (11th ed.

2019) (defining “sexual abuse” as “[a]n illegal or wrongful sex act, esp. one performed against a minor by an adult”). Although the trial court could have specifically referenced “indecency with a child or sexual assault of a child” in its limiting instructions, using “sexual abuse” to refer to those charges is not by itself enough to show error by the trial court. See Ngo, 175 S.W.3d at

743. 6 We overrule Appellant’s second issue.

JURY CHARGE PROBATION LANGUAGE EXCLUSION

In his final issue, Appellant argues that he suffered some harm7 when the trial court denied his request that the jury charge include the standard probation conditions. Although

Appellant focuses on how he suffered harm from the lack of the probation conditions in the jury charge, we must first determine whether an error exists at all. See Ngo, 175 S.W.3d at 743; accord McCall, 635 S.W.3d at 265–66. Contrary to Appellant’s argument, “it is well settled that a trial court is not required to include in its punishment charge the terms and conditions a

defendant might face if the jury recommended community supervision.” Velazquez v. State, No. 02-10-00253-CR, 2011 WL 3672018, at *3 (Tex. App.—Fort Worth Aug. 18, 2011, pet. ref’d) (mem. op., not designated for publication); see also, e.g., Yarbrough v. State, 779 S.W.2d

844, 845 (Tex. Crim. App. 1989) (per curiam) (dismissing petition for discretionary review as improvidently granted and approving lower court’s opinion holding not reversible error to refuse

to include all statutory conditions of community supervision in jury charge); Sanchez v. State, 243 S.W.3d 57, 69 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (“A trial court is not required to submit the statutory terms of community supervision in the jury charge on punishment.”); Parks v. State, No. 03-00-00253-CR, 2000 WL 1862111, at *3 (Tex. App.—

Austin Dec. 21, 2000, no pet.) (mem. op., not designated for publication) (concluding that “[a] trial court need not enumerate in a jury charge each and every possible condition of community supervision that could be imposed on a defendant”). Nor does Appellant cite any controlling law to the contrary. We overrule his final issue.

CONCLUSION

Having overruled all of Appellant’s issues, we affirm the trial court’s judgment.

__________________________________________ Darlene Byrne, Chief Justice Before Chief Justice Byrne, Justices Triana and Smith Affirmed Filed: October 31, 2023 Do Not Publish