unanimity requirement in Texas

2016Unanimity Instruction In his second issue on appeal, Smith asserts that the district court “committed jury charge error by failing to give a unanimity instruction as to each separate criminal incident alleged at trial and the separate actors, as set out in the indictment.” Appellate courts review claims regarding alleged jury-charge errors under a “two-pronged test,” see Swearingen v. State, 270 S.W.3d 804, 808 (Tex.App.— Austin 2008, pet. ref'd), with the first prong being a determination regarding “whether error exists,” Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005).

2016Moreover, unlike some of the cases relied on by Smith in which boilerplate unanimity instructions were included at the end of the charges separate from the paragraphs applying the governing law to' the facts and were determined to be defective, see, e.g., Cosio, 353 S.W.3d at 774 ; Ngo, 175 S.W.3d at 745, 749 , the unanimity instruction here appeared in' the section of the charge entitled “APPLICATION OF THE LAW TO THE FACTS” right after the elements of the offense in question were listed and immediately before the particular allegations from the indictment were set out.

2018"The unanimity requirement is not violated by instructing the jury on alternate theories of committing the same offense...." Saenz , 451 S.W.3d at 390 (quoting Martinez v. State , 129 S.W.3d 101 , 103 (Tex. Crim.

2014See Martinez v. State, 129 S.W.3d 101, 103 (Tex.Crim.App. 2004) (“The unanimity requirement is not violated by instructing the jury on alternate theories of committing the same offense ....”).

2024“The principle justification 6 Each charge stated, “Your verdict must be unanimous.” –11– for the unanimity requirement is that it ensures that each juror is convinced beyond a reasonable doubt that the prosecution has proved each essential element of the offense.” Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim.

2015In Jefferson v. State, the Court of Criminal Appeals, faced with similar facts, held that a unanimity instruction was not required. 189 S.W.3d 305, 314 (Tex. Crim.

2023“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.

2016“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.

2025See Cosio, 353 S.W.3d at 777 (holding jury charge permitting nonunanimous verdicts weighed in favor of reversal); see also Arrington, 451 S.W.3d at 841 (holding when trial court provided multiple generic unanimity instructions, none of which apprised the jury of the proper unanimity requirement, this factor weighed in favor of reversal). (2.) state of the evidence The state of the evidence refutes the notion that any actual harm occurred.

2022After considering and weighing all of the relevant factors, we conclude that the lack of a proper unanimity instruction did not cause actual harm to appellant See Cosio, 353 S.W.3d at 777–78 (no egregious harm even though the jury instructions also weighed in favor of finding egregious harm); see also Bell v. State, No. 05-13-01616-CR, 2015 WL 1648001 , at *4–5 (Tex. –26– App.—Dallas Apr. 10, 2015, pet. ref’d) (citing Arrington, 451 S.W.3d at 845 ).

2009See Jefferson, 189 S.W.3d at 311 (quoting Johnson, 627 N.W. 2d at 460 ) (discussing that jury “‘unanimity is generally not required on the alternate modes or means of commission’” of an offense); Kitchens, 823 S.W.2d at 258 (explaining that the unanimity requirement is not violated when the jury has the option of choosing between alternate modes of commission); Aguirre, 732 S.W.2d at 326 .

2007Sept. 1, 2001). [24] 823 S.W.2d at 257. [25] Id. at 258. [26] Id. at 258 n. 2.; see also Martinez v. State, 129 S.W.3d 101, 103 (Tex.Crim.App.2004) (holding that the unanimity requirement was not violated where jury was charged in the disjunctive on alternate theories of committing capital murder). [27] 36 S.W.3d at 122 . [28] Id. [29] Id. [30] Id. at 122-23 . [31] Id. at 123 . [32] Id. at 122 . [33] Id. [34] Id. at 124 . [35] Id. [36] Id. at 125 . [37] Id. [38] 991 S.W.2d at 832-833 . [39] Id. at 831 . [40] Id. at 833 . [41] Id. [42] Id. [43] Id. [44] Id. [45] See also Haight v. State, 137 S.

2026After weighing the relevant factors, we find that Howard was egregiously harmed by the lack of a proper unanimity instruction related to Counts II and III because this is a case where “the parties . . . added to the charge errors by telling the jury that it did not have to be unanimous about the specific instance of criminal conduct in rendering its verdicts.” Id.

2025See id. at 772, 774 ; Brown v. State, No. 02-22-00190-CR, 2023 WL 4779490 , at *6 (Tex. App.—Fort Worth July 27, 2023, no pet.) (mem. op., not designated for publication) (“[B]ecause the State presented evidence that [the appellant] had committed a variety of sexual acts with [the complainant] on multiple but separate occasions, the trial court erred by failing to include a more specific unanimity instruction in the sexual-assault and indecency jury charges.”). c.

2025“The unanimity requirement is not violated when the jury has the option of choosing between alternative modes of commission.” Pizzo, 235 S.W.3d at 715 .

2024See Miranda, 391 S.W.3d at 311 (“[T]he jury is not required to unanimously agree about which aggravating factor is present in an aggravated sexual assault, because the various aggravating factors do not constitute distinct offenses.”); see also Pizzo, 235 S.W.3d at 715 (“The unanimity requirement is not violated when the jury has the option of choosing 17 between alternative modes of commission.”); Woodard v. State, 294 S.W.3d 605 , 608–09 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (following Landrian in aggravated robbery case and holding that “unanimity as to the aggravating factors wa

2015App. 2006) (The Court quoted approvingly an opinion of the Wisconsin Supreme Court, State v. Johnson, 243 Wis.2d 365 , 627 N.W.2d 455 , 459—60 (2001), in using a two-part analysis for such a unanimity challenge: (1) examine the statute to determine whether the Legislature intended to define separate offenses or merely alternative ways to commit one offense, and (2) if the offending behavior merely constitutes alternative ways to commit one offense, consider whether that formulation denies the defendant the due process of law as stated by Schad v. Arizona, 501 U.S. 624 , 111 S.Ct. 2491 , 115 L.

2015App. 2006) (The Court quoted approvingly an opinion of the Wisconsin Supreme Court, State v. Johnson, 243 Wis.2d 365 , 627 N.W.2d 455 , 459—60 (2001), in using a two-part analysis for such a unanimity challenge: (1) examine the statute to determine whether the Legislature intended to define separate offenses or merely alternative ways to commit one offense, and (2) if the offending behavior merely constitutes alternative ways to commit one offense, consider whether that formulation denies the defendant the due process of law as stated by Schad v. Arizona, 501 U.S. 624 , 111 S.Ct. 2491 , 115 L.

2026Id.

2018"The unanimity requirement is not violated by instructing the jury on alternate theories of committing the same offense...." Saenz , 451 S.W.3d at 390 (quoting Martinez v. State , 129 S.W.3d 101 , 103 (Tex. Crim.

2015Similarly, Texas Court of Criminal Appeals ruled on a unanimity challenge that, where the charge was injury to a child, under Section 22.04 of the Texas Penal Code—but the defendant was accused alternatively of (1) striking the child, (2) failing to prevent another from injuring the child, and (3) 109 Aguirre, 732 S.W.2d at 320 (quoting McArthur v. State, 132 Tex. Crim. 447 , 105 S.W.2d 227, 230 (1937) (op. on reh’g)); see also Barfield v. State, 202 S.W.3d 912, 915-16 (Tex. App.—Texarkana 2006, pet. ref’d). 110 Aguirre, 732 S.W.2d at 326 . 111 Id. 112 Id. 113 Id. 19 failing to provide proper

2015Similarly, Texas Court of Criminal Appeals ruled on a unanimity challenge that, where the charge was injury to a child, under Section 22.04 of the Texas Penal Code—but the defendant was accused alternatively of (1) striking the child, (2) failing to prevent another from injuring the child, and (3) 109 Aguirre, 732 S.W.2d at 320 (quoting McArthur v. State, 132 Tex. Crim. 447 , 105 S.W.2d 227, 230 (1937) (op. on reh’g)); see also Barfield v. State, 202 S.W.3d 912, 915-16 (Tex. App.—Texarkana 2006, pet. ref’d). 110 Aguirre, 732 S.W.2d at 326 . 111 Id. 112 Id. 113 Id. 19 failing to provide proper

2015See United States v. Gipson, 553 F.2d 453 , 457 n. 7 (5th Cir. 1977).

2006See United States v. Gipson , 553 F.2d 453 , 457 n.7 (5th Cir. 1977).

2009De Los Santos v. State , 219 S.W.3d 71, 76 (Tex. App.—San Antonio 2006, no pet.); Cook v. State , 192 S.W.3d 115, 118 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

2008"Unanimity in this context means that each and every juror agrees that the defendant committed the same, single, specific criminal act." Id . at 745. "[C]harging a jury disjunctively on separate offenses involving separate incidents does violate the unanimity requirement." Cook v. State , 192 S.W.3d 115, 118 (Tex. App.--Houston [14th Dist.] 2006, no pet.) (citing Martinez v. State , 129 S.W.3d 101, 103 (Tex. Crim.

2009De Los Santos v. State , 219 S.W.3d 71, 76 (Tex. App.—San Antonio 2006, no pet.); Cook v. State , 192 S.W.3d 115, 118 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

2009De Los Santos v. State, 219 S.W.3d 71, 76 (Tex. App.—San Antonio 2006, no pet.); Cook v. State, 192 S.W.3d 115, 118 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

2016This court, on three previous occasions, has rejected the argument advanced by Diko — that sections 19.02(b)(1) and 19.02(b)(2) constitute two separate offenses and that a trial court violates the unanimity requirement by allowing the jury to find a defendant guilty without requiring the jury to agree on which offense the defendant committed. 4 See Lozano v. State, 359 S.W.3d 790, 821-22 (Tex.App.-Fort Worth 2012, pet. refd); Bundy v. State, 280 S.W.3d 425, 431-33 (Tex.App.-Fort Worth 2009, pet. refd); Davis v. State, 268 S.W.3d 683, 710-12 (Tex.App.-Fort Worth 2008, pet. refd). 5 : As we stat

2016This court, on three previous occasions, has rejected the argument advanced by Diko — that sections 19.02(b)(1) and 19.02(b)(2) constitute two separate offenses and that a trial court violates the unanimity requirement by allowing the jury to find a defendant guilty without requiring the jury to agree on which offense the defendant committed. 4 See Lozano v. State, 359 S.W.3d 790, 821-22 (Tex.App.-Fort Worth 2012, pet. refd); Bundy v. State, 280 S.W.3d 425, 431-33 (Tex.App.-Fort Worth 2009, pet. refd); Davis v. State, 268 S.W.3d 683, 710-12 (Tex.App.-Fort Worth 2008, pet. refd). 5 : As we stat

2018When, as in these cases, appellant failed make a timely and specific trial objection to an alleged unanimity error in the charge, we review under the egregious harm standard set forth in Almanza v. State, 686 S.W.2d 157 (Tex. Crim.

2007Sept. 1, 2001). [24] 823 S.W.2d at 257. [25] Id. at 258. [26] Id. at 258 n. 2.; see also Martinez v. State, 129 S.W.3d 101, 103 (Tex.Crim.App.2004) (holding that the unanimity requirement was not violated where jury was charged in the disjunctive on alternate theories of committing capital murder). [27] 36 S.W.3d at 122 . [28] Id. [29] Id. [30] Id. at 122-23 . [31] Id. at 123 . [32] Id. at 122 . [33] Id. [34] Id. at 124 . [35] Id. [36] Id. at 125 . [37] Id. [38] 991 S.W.2d at 832-833 . [39] Id. at 831 . [40] Id. at 833 . [41] Id. [42] Id. [43] Id. [44] Id. [45] See also Haight v. State, 137 S.

2007Sept. 1, 2001). [24] 823 S.W.2d at 257. [25] Id. at 258. [26] Id. at 258 n. 2.; see also Martinez v. State, 129 S.W.3d 101, 103 (Tex.Crim.App.2004) (holding that the unanimity requirement was not violated where jury was charged in the disjunctive on alternate theories of committing capital murder). [27] 36 S.W.3d at 122 . [28] Id. [29] Id. [30] Id. at 122-23 . [31] Id. at 123 . [32] Id. at 122 . [33] Id. [34] Id. at 124 . [35] Id. [36] Id. at 125 . [37] Id. [38] 991 S.W.2d at 832-833 . [39] Id. at 831 . [40] Id. at 833 . [41] Id. [42] Id. [43] Id. [44] Id. [45] See also Haight v. State, 137 S.

2007Sept. 1, 2001). [24] 823 S.W.2d at 257. [25] Id. at 258. [26] Id. at 258 n. 2.; see also Martinez v. State, 129 S.W.3d 101, 103 (Tex.Crim.App.2004) (holding that the unanimity requirement was not violated where jury was charged in the disjunctive on alternate theories of committing capital murder). [27] 36 S.W.3d at 122 . [28] Id. [29] Id. [30] Id. at 122-23 . [31] Id. at 123 . [32] Id. at 122 . [33] Id. [34] Id. at 124 . [35] Id. [36] Id. at 125 . [37] Id. [38] 991 S.W.2d at 832-833 . [39] Id. at 831 . [40] Id. at 833 . [41] Id. [42] Id. [43] Id. [44] Id. [45] See also Haight v. State, 137 S.

2007Marinos v. State, 186 S.W.3d 167, 175 (Tex.App.-Austin 2006, pet. filed). 2 Accordingly, the first step in a unanimity challenge is to examine the language of the statute in order to determine whether the legislature intended to create multiple, separate offenses, or a single offense capable of being committed in several different ways.

2007Marinos v. State , 186 S.W.3d 167, 175 (Tex. App. C Austin 2006, pet. filed). [2] Accordingly, the first step in a unanimity challenge is to examine the language of the statute in order to determine whether the legislature intended to create multiple, separate offenses, or a single offense capable of being committed in several different ways.

2026Newman raises five appellate points: the court’s charge failed to instruct the jury on the statutory requirements of the predicate offenses for CSA, including the requisite mental states (points one and two); the charge impermissibly allowed the jury to convict him of CSA regardless of whether the predicate acts of abuse occurred at least 30 days apart (point three); the charge improperly allowed the jury to find him guilty of separate and distinct predicate offenses, violating the Sixth Amendment’s unanimity requirement as interpreted by Ramos v. Louisiana, 590 U.S. 83 , 140 S. Ct. 1390 (2020

2025R. 7. 2 other, not “apart” therefrom; and (3) the abstract and application paragraphs of the CSA count permitted individual jurors to find him guilty of predicate offenses separate and distinct from those found by other jurors in violation of the unanimity requirement of the Sixth Amendment as interpreted by Ramos v. Louisiana, 590 U.S. 83 , 140 S. Ct. 1390 (2020), and Richardson v. United States, 526 U.S. 813 , 119 S. Ct. 1707 (1999).

2015See Id. at 113 .

2015In an opinion dated August 14, 2013, this court reversed appellant’s conviction after concluding appellant was denied a fair trial based on the trial court’s failure to include a unanimity instruction in the jury charge and, thus, was egregiously harmed. 1 See Arrington v. State, 413 S.W.3d 106 (Tex. App.—San Antonio 2013), rev’d & remanded, ___ 1 On appeal, the State conceded the lack of such an instruction in the jury charge was error. 04-12-00430-CR S.W.3d ___, No. PD-1448-13, 2015 WL 170110 (Tex. Crim.

2016This court, on three previous occasions, has rejected the argument advanced by Diko — that sections 19.02(b)(1) and 19.02(b)(2) constitute two separate offenses and that a trial court violates the unanimity requirement by allowing the jury to find a defendant guilty without requiring the jury to agree on which offense the defendant committed. 4 See Lozano v. State, 359 S.W.3d 790, 821-22 (Tex.App.-Fort Worth 2012, pet. refd); Bundy v. State, 280 S.W.3d 425, 431-33 (Tex.App.-Fort Worth 2009, pet. refd); Davis v. State, 268 S.W.3d 683, 710-12 (Tex.App.-Fort Worth 2008, pet. refd). 5 : As we stat

2016This court, on three previous occasions, has rejected the argument advanced by Diko—that sections 19.02(b)(1) and 19.02(b)(2) constitute two 5 separate offenses and that a trial court violates the unanimity requirement by allowing the jury to find a defendant guilty without requiring the jury to agree on which offense the defendant committed.4 See Lozano v. State, 359 S.W.3d 790 , 821–22 (Tex. App.—Fort Worth 2012, pet. ref’d); Bundy v. State, 280 S.W.3d 425 , 431–33 (Tex. App.—Fort Worth 2009, pet. ref’d); Davis v. State, 268 S.W.3d 683 , 710–12 (Tex. App.—Fort Worth 2008, pet. ref’d).5 As we

2010App. 1991) (explaining that the unanimity requirement is not violated when the jury has the option of choosing between alternate modes of commission); Aguirre, 732 S.W.2d at 326 ; Yost v. State, 222 S.W.3d 865, 877 (Tex. App.–Houston [14th Dist.] 2007, pet. ref’d); Garcia v. State, 246 S.W.3d 121, 141-42 (Tex. App.–San Antonio 2007, pet. ref’d).

2010App. 1991) (explaining that the unanimity requirement is not violated when the jury has the option of choosing between alternate modes of commission); Aguirre , 732 S.W.2d at 326 ; Yost v. State , 222 S.W.3d 865, 877 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd); Garcia v. State , 246 S.W.3d 121, 141-42 (Tex. App.-San Antonio 2007, pet. ref'd).

2024Briones argues that, in the absence of a specific unanimity instruction on aggravated sexual assault, there is no assurance that the jury unanimously agreed on which criminal act (penetration or contact) he committed to establish aggravated sexual assault. “[T]he 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) (“different modes of commission” may be properly submitted disjuncti

2023App. 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.

2021“We employ a two-step process in our review of alleged jury charge error.” Murrieta v. State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim.

2021Specific Unanimity Instruction In his first point of error, Wesley contends that the trial court’s failure to include a specific unanimity instruction requiring the jury to unanimously agree on what specific conduct constituted each specific count caused egregious harm. 6 The indictment regarding victim Parker originally contained four charges, but at the conclusion of the State’s case- in-chief, the State abandoned two of the counts, leaving only one count of indecency with a child by contact and one count of sexual assault of a child. 20 A. Standard of Review “We employ a two-step process in

2010App. 1991) (explaining that the unanimity requirement is not violated when the jury has the option of choosing between alternate modes of commission); Aguirre, 732 S.W.2d at 326 ; Yost v. State, 222 S.W.3d 865, 877 (Tex. App.–Houston [14th Dist.] 2007, pet. ref’d); Garcia v. State, 246 S.W.3d 121, 141-42 (Tex. App.–San Antonio 2007, pet. ref’d).

2010App. 1991) (explaining that the unanimity requirement is not violated when the jury has the option of choosing between alternate modes of commission); Aguirre , 732 S.W.2d at 326 ; Yost v. State , 222 S.W.3d 865, 877 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd); Garcia v. State , 246 S.W.3d 121, 141-42 (Tex. App.-San Antonio 2007, pet. ref'd).

2025R. 7. 2 other, not “apart” therefrom; and (3) the abstract and application paragraphs of the CSA count permitted individual jurors to find him guilty of predicate offenses separate and distinct from those found by other jurors in violation of the unanimity requirement of the Sixth Amendment as interpreted by Ramos v. Louisiana, 590 U.S. 83 , 140 S. Ct. 1390 (2020), and Richardson v. United States, 526 U.S. 813 , 119 S. Ct. 1707 (1999).

2025R. 7. 2 other, not “apart” therefrom; and (3) the abstract and application paragraphs of the CSA count permitted individual jurors to find him guilty of predicate offenses separate and distinct from those found by other jurors in violation of the unanimity requirement of the Sixth Amendment as interpreted by Ramos v. Louisiana, 590 U.S. 83 , 140 S. Ct. 1390 (2020), and Richardson v. United States, 526 U.S. 813 , 119 S. Ct. 1707 (1999).