Mathonican v. State

• Decision Date: 12 May 2006
• Docket Number: No. 06-05-00056-CR.,06-05-00056-CR.
• Citation: 194 S.W.3d 59
• Parties: Earl Edward MATHONICAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

194 S.W.3d 59

Earl Edward MATHONICAN, Appellant, v. The STATE of Texas, Appellee.

No. 06-05-00056-CR.

Court of Appeals of Texas, Texarkana.

Submitted February 23, 2006.

Decided May 12, 2006.

COPYRIGHT MATERIAL OMITTED

Cynthia Braddy, Sulphur Springs, for appellant.

Carol Day Moss, Asst. Dist. Atty., F. Duncan Thomas, Dist. Atty., Greenville, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Chief Justice MORRISS.

The State charged Earl Edward Mathonican with the crime of sexually assaulting J.M. by causing three distinct penile penetrations without J.M.'s consent — J.M. penetrating Mathonican's anus and mouth, and Mathonican penetrating J.M.'s mouth. See TEX. PEN.CODE ANN. § 22.011 (Vernon Supp.2005). The State also sought and obtained a jury finding that, during the commission of the offenses, Mathonican used or exhibited a deadly weapon, that is, his HIV-positive seminal fluid.¹ After convicting Mathonican, the jury assessed his punishment at ninety-seven years' imprisonment.²

On appeal, Mathonican claims the charges were erroneously submitted to the jury disjunctively, violating his right to a unanimous verdict on each charge. He also challenges the sufficiency of the evidence to support the deadly weapon finding. We reverse Mathonican's conviction and remand the cause for a new trial because we hold that (1) the jury charge erroneously allowed a conviction by a potentially less-than-unanimous jury, and that error was egregiously harmful, but that (2) on remand the State may again seek a deadly weapon finding because the evidence was legally sufficient to support that finding.

(1) The Jury Charge Contained Error Requiring Reversal

In his first point of error, Mathonican contends the trial court's disjunctive charge to the jury violated his right under the Texas Constitution to a unanimous verdict. See TEX. CONST. art. I, § 19, art. V, § 13 (composition of civil and criminal juries); TEX.CODE CRIM. PROC. ANN. art. 36.29(a) (Vernon Supp.2005) (unanimous jury verdict required in criminal cases). We agree.

"The function of the jury charge is to instruct the jury on applying the law to the facts." Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994). "[A]n erroneous or an incomplete jury charge jeopardizes a defendant's right to jury trial because it fails to properly guide the jury in its fact-finding function." Id. "An erroneous or incomplete jury charge, however, does not result in automatic reversal of a conviction." Id. Instead, Article 36.19 of the Texas Code of Criminal Procedure outlines the path this Court should follow to review error in the charge: "[F]irst, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal." Id. at 731-32 (citing TEX.CODE CRIM. PROC. ANN. art. 36.19 (Vernon 1981) and referencing Gibson v. State, 726 S.W.2d 129, 132 (Tex.Crim.App.1987)). The subsequent evaluation of whether "sufficient harm" shall be found to require reversal "depends upon whether appellant objected." Abdnor, 871 S.W.2d at 732. "Where there has been a timely objection made at trial, an appellate court will search only for `some harm.'" Id. "By contrast, where the error is urged for the first time on appeal, a reviewing court will search for `egregious harm.'" Id. (citing Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim.App.1986); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh'g)).

(a) The Indictment

Because a proper jury charge is generally limited to and guided by the language of the indictment, see, e.g., Brown v. State, 159 S.W.3d 703, 710 (Tex. App.-Texarkana 2004, pet. denied) (referencing Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App.2000)), it is essential to first examine the applicable portions of the State's indictment.³ The indictment's second count contained three paragraphs, which alleged:

AND THE GRAND JURORS AFORESAID do further present in and to said Court that on or about the 26th day of December, 2003, the said Earl Edward Mathonican

Paragraph One

did then and there intentionally and knowingly sexually assault [J.M.], by causing [J.M.'s] sexual organ to penetrate [the] anus of the said Earl Edward Mathonican, without [J.M.'s] consent, and the said Earl Edward Mathonican knew that the said [J.M.] was unconscious and/or physically unable to resist;

Paragraph Two

did then and there intentionally and knowingly sexually assault [J.M.], by causing [J.M.'s] sexual organ to penetrate the mouth of the said Earl Edward Mathonican, without [J.M.'s] consent, and the said Earl Edward Mathonican knew that the said [J.M.] was unaware that the sexual assault was occurring;

Paragraph Three

did then and there intentionally and knowingly sexually assault [J.M.], by causing his sexual organ to penetrate the mouth of the said [J.M.], without [J.M.'s] consent, and the said Earl Edward Mathonican knew that the said [J.M.] was unaware that the sexual assault was occurring; . . . .

(b) The Jury Charge

The trial court's jury charge during the guilt/innocence phase included nine pages of instructions, plus two additional pages of verdict forms. The relevant application paragraphs instructed the jury:

9.

Next consider the offense of sexual assault as set out in Count Two, Paragraph One. If you find from the evidence beyond a reasonable doubt that on or about the 26th day of December, 2003, in Hunt County, Texas, the defendant, Earl Edward Mathonican, did then and there, intentionally or knowingly, sexually assault [J.M.], by causing [J.M.'s] sexual organ to penetrate the anus of the said Earl Edward Mathonican, without [J.M.'s] consent, and the said Earl Edward Mathonican knew that the said [J.M.] was unconscious or physically unable to resist, then you will find the defendant guilty of sexual assault by causing [J.M.'s] sexual organ to penetrate the anus of Earl Edward Mathonican, as charged in Count Two, Paragraph One of the indictment. If the evidence did not convince you beyond a reasonable doubt or you have a reasonable doubt thereof, you will acquit the defendant and say so by your verdict of "not guilty."

10.

Next consider the offense of sexual assault as set out in Count Two, Paragraph Two of the indictment. If you find from the evidence beyond a reasonable doubt that on or about the 26th day of December, 2003, in Hunt County, Texas, the defendant, Earl Edward Mathonican, did then and there, intentionally or knowingly, sexually assault [J.M.], by causing [J.M.'s] sexual organ to penetrate the mouth of the said Earl Edward Mathonican, without [J.M.'s] consent, and the said Earl Edward Mathonican knew that the said [J.M.] was unaware that the sexual assault was occurring, then you will find the defendant guilty of sexual assault by causing [J.M.'s] sexual organ to penetrate the mouth of Earl Edward Mathonican, as charged in Count Two, Paragraph Two of the indictment. If the evidence did not convince you beyond a reasonable doubt or you have a reasonable doubt thereof, you will acquit the defendant and say so by your verdict of "not guilty."

11.

Next consider the offense of sexual assault as set out in Count Two, Paragraph Three. If you find from the evidence beyond a reasonable doubt that on or about the 26th day of December, 2003, in Hunt County, Texas, the defendant, Earl Edward Mathonican, did then and there, intentionally or knowingly, sexually assault [J.M.], by causing his sexual organ to penetrate the mouth of the said [J.M.], without [J.M.'s] consent, and the said Earl Edward Mathonican knew that the said [J.M.] was unaware that the sexual assault was occurring, then you will find the defendant guilty of sexual assault by causing his sexual organ to penetrate the mouth of [J.M.], as charged in Count Two, Paragraph Three. If the evidence did not convince you beyond a reasonable doubt or you have a reasonable doubt thereof, you will acquit the defendant and say so by your verdict of "not guilty."

The verdict form regarding the charges of sexual assault, however, did not require the jury to designate the criminal acts constituting sexual assault of which the jury had found Mathonican guilty:

We, the Jury, find the defendant, Earl Edward Mathonican, "Guilty" of the offense of Sexual Assault as charged in of [sic] the indictment.

                [signed by the presiding juror]
                

We, the Jury, find the defendant Earl Edward Mathonican, "Not Guilty" of Sexual Assault.

(c) The Disjunctive Jury Charge Was Error

While the Texas Court of Criminal Appeals and various Texas Courts of Appeals have previously addressed the issue of a potentially nonunanimous verdict, no Texas court has encountered a case presenting precisely the same facts — nor a conviction involving only the sexual assault statute — as we find presented here. But several cases provide guidance.

In Francis v. State, 36 S.W.3d 121 (Tex. Crim.App.2000), the State charged the defendant with a single count of indecency with a child. At trial, "[t]he State introduced evidence of four acts of indecency during its case-in-chief, but elected to proceed on only two of those acts." The trial court denied Francis' request for the State to have to elect between the two remaining, different, criminal acts; and the trial court further denied Francis' request that the jury be instructed that the State was required to prove Francis committed both the remaining criminal acts. Id. at 122.

In analyzing whether the trial court had erred, the Texas Court of Criminal Appeals first distinguished its earlier opinion in Kitchens v. State, 823 S.W.2d 256 (Tex. Crim.App.1991): "Unlike the charge in Kitchens, however, alternate theories of committing the same offense were not submitted to the jury in this case. Rather, two separate offenses were submitted to the jury in the disjunctive." Francis, 36 S.W.3d at 124. "When the appellant requested that the State be asked to elect, the State...