Cosio v. State

• Decision Date: 14 September 2011
• Docket Number: No. PD–1435–10.,PD–1435–10.
• Parties: Jesus E. COSIO, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

353 S.W.3d 766

Jesus E. COSIO, Appellant,

v.The STATE of Texas.

No. PD–1435–10.

Court of Criminal Appeals of Texas.

Sept. 14, 2011.

Roland Garza, Edinburg, for Appellant.

Theodore C. Hake, Asst. Crim. D.A., Edinburg, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

KEASLER, J., delivered the opinion for a unanimous Court.

We hold that the trial judge's instructions to the jury permitted non-unanimous verdicts. There were several instances of sexual criminal conduct that could have satisfied the charged offenses, and the judge failed to instruct the jury that it must be unanimous about which instance of criminal conduct satisfied each charged. But we conclude that Jesus Eduardo Cosio was not egregiously harmed. We therefore reverse and remand this case to the court of appeals for proceedings consistent with this opinion.

I. Background

Cosio was charged by indictment with several felony offenses stemming from the sexual abuse of his former girlfriend's daughter, C.P. In Count One, the State charged Cosio with aggravated sexual assault of child, alleging that Cosio caused his sexual organ to penetrate C.P.'s mouth on or about July 31, 2004. In Count Two, which included four alternative paragraphs, Cosio was charged with aggravated sexual assault of a child, occurring on or about July 31, 2004. In Count Three, which included one paragraph, Cosio was charged with indecency with a child by contact, alleging that Cosio touched C.P.'s genitals on or about July 31, 2007. And finally, in Count Four, with two alternative paragraphs, Cosio was charged with indecency with a child by contact, occurring on or about July 31, 2007. Cosio pled not guilty and elected to have a jury trial.

During the guilt phase, C.P. testified about the various instances of sexual misconduct:

The Shower Incident: When C.P. was seven or eight, she was in the family's only bathroom taking a shower by herself. Cosio came in touched her on her breasts and “private part, mostly everywhere.”

The Bedroom Incident: About a week after the shower incident, Cosio took C.P. into the bedroom that he shared with C.P.'s mother. Cosio started by touching C.P.'s breasts and whole body and kissing her. Cosio removed C.P.'s underwear. Cosio made her “suck his penis” and then put his penis in her vagina for about three minutes. Cosio stopped because he expected C.P.'s mother to return home.

The Burger King Incident: At some unidentified time, Cosio took C.P. to Burger King. Cosio made C.P. “suck his penis” on the way to the restaurant and on the way home.

The Pornography Incident: When C.P. was nine or ten, Cosio took C.P. in the bedroom that he shared with C.P.'s mother and showed her a pornographic movie. Cosio took off C.P.'s clothes forced her to “try” the positions that were shown on the film, including “doggie style.” He put his penis in her vagina.

After the close of evidence, Cosio requested that the State elect as to the “counts” that it would proceed under. With respect to Count Two, the State elected to proceed under paragraph three, which alleged that Cosio penetrated C.P.'s sexual organ. And with respect to Count Four, the State elected to proceed under paragraph one, which alleged that Cosio touched C.P.'s genitals. Taken together, the State had to prove the following:

Count One: On or about July 31, 2004, Cosio caused his sexual organ to penetrate C.P.'s mouth.

Count Two: On or about July 31, 2004, Cosio caused his sexual organ to penetrate C.P.'s sexual organ.

Count Three: On or about July 31, 2007, Cosio touched C.P.'s genitals.

Count Four: On or about July 31, 2007, Cosio touched C.P.'s genitals.

The jury charges coincided with the State's election and generally instructed the jury, at the end of each charge, that its verdicts must be unanimous. Cosio did not object to the charges on the basis that they allowed for non-unanimous verdicts.

The jury found Cosio guilty on all counts and sentenced him to twenty-five years' imprisonment on Counts One and Two and ten years' imprisonment on Counts Three and Four, as well as a fine. The imposition of the sentences in Counts Three and Four were suspended, and Cosio was placed on community supervision.

II. Court of Appeals

In the Corpus Christi Court of Appeals, Cosio challenged the sufficiency of the evidence and alleged that the jury charges “contained egregious error” because they permitted non-unanimous verdicts.¹ The court of appeals, sitting en banc, held that the evidence was insufficient to support the jury's verdict for one of the convictions for indecency with a child.² C.P.'s testimony that Cosio touched her breasts and “whole body” during the bedroom incident when she was seven or eight, in the court's opinion, was “too imprecise for the trier of fact to reasonably infer that Cosio touched her genitals on that occasion.” ³

The court of appeals then held that the charges were erroneous.⁴ The evidence showed that there were at least more than one instance of misconduct that supported each count, and the charges did not instruct the jury that it had to be unanimous about which instance constituted the commission of the offenses for purposes of each of the individual counts.⁵

First, regarding Count One, which alleged that Cosio committed aggravated sexual assault of a child by penetrating C.P.'s mouth with his penis on or about July 31, 2004, the court observed that there were two specific instances of this type misconduct—the bedroom and the Burger King incidents.⁶

Next, with respect to Count Two—which alleged that Cosio committed aggravated sexual assault by penetrating C.P.'s vagina with his penis on or about July 31, 2004–the court of appeals determined that two different incidents supported this alleged offense—the bedroom and pornography incidents.⁷

Finally, regarding the indecency counts—both Counts Three and Four, which alleged that Cosio touched C.P.'s genitals on or about July 31, 2007, respectively—the charges did not differentiate between whether the touching of C.P.'s genitals was done with Cosio's hand or penis.⁸ Thus, in total, there were three instances in which Cosio touched C.P.'s genitals: the shower incident, the bedroom incident, and the pornography incident.⁹

The court of appeals then rejected the State's argument that Cosio's failure to request an election as to the specific incident of misconduct that it was relying on for each count waived his complaint on appeal.¹⁰ The court noted that while Cosio complained about unanimity on appeal, his point of error was also based on charge error.¹¹ Further, the court recognized that at trial, Cosio did not object to the charges on the basis that they allowed for a non-unanimous verdicts.¹² Therefore, the court conducted an egregious harm analysis under Almanza v. State and ultimately held that Cosio was egregiously harmed.¹³

Justice Garza dissented and concurred in part. In dissent, Justice Garza claimed that the charges permitted unanimous verdicts ¹⁴ and that, even if there was error, Cosio forfeited his jury charge complaint because he failed to request that the State elect as to which incidents of criminal conduct that it wanted to rely upon.¹⁵ Finally, the record did not show egregious harm.¹⁶

We granted the State's petition for discretionary review to consider the propriety of court of appeals's analysis and decision on the unanimity and charge issues.

III. Analysis

A. Error

We determine first whether the charges were erroneous, by allowing for the possibility of non-unanimous verdicts, as held by the majority of the court of appeals.

Texas law requires that a jury reach a unanimous verdict about the specific crime that the defendant committed.¹⁷ This means that the jury must “agree upon a single and discrete incident that would constitute the commission of the offense alleged.” ¹⁸ There are several ways in which non-unanimity issues arise, and in this context, based on our precedent, we have recognized three variations that may result in non-unanimous verdicts as to a particular incident of criminal conduct ¹⁹ that comprises the charged offense.²⁰ Non-unanimity may result in each of these situations when the jury charge fails to properly instruct the jury, based on the indicted offense(s) and specific evidence in the case, that its verdict must be unanimous.

First, non-unanimity may occur when the State presents evidence demonstrating the repetition of the same criminal conduct, but the actual results of the conduct differed.²¹ For example, if the State charges the defendant with the theft of one item and the evidence shows that the defendant had in fact stolen two of the same items, the jury's verdict may not be unanimous as to which of the two items the defendant stole.²² To ensure a unanimous verdict in this situation, the jury charge would have to make clear that the jury must be unanimous about which of the two items was the subject of the single theft.

Second, non-unanimity may occur when the State charges one offense and presents evidence that the defendant committed the charged offense on multiple but separate occasions.²³ Each of the multiple incidents individually establishes a different offense ²⁴ or unit of prosecution. ²⁵ The judge's charge, to ensure unanimity, would need to instruct the jury that its verdict must be unanimous as to a single offense or unit of prosecution among those presented.

And third and finally, non-unanimity may occur when the State charges one offense and presents evidence of an offense, committed at a different time, that violated a different provision of the same criminal statute.²⁶ To ensure unanimity in this situation, the charge would need to instruct the jury that it has to be unanimous about which statutory provision, among those available based on the facts, the defendant violated.

The facts here fall within the scope of the second category, and we addressed this situation in Francis v. State.²⁷ There, the State charged Francis with one count of...