Pizzo v. State

• Citation: 235 S.W.3d 711
• Decision Date: 26 September 2007
• Docket Number: No. PD-1765-05.,PD-1765-05.
• Parties: Barry Louis PIZZO, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

235 S.W.3d 711

Barry Louis PIZZO, Appellant v. The STATE of Texas.

No. PD-1765-05.

Court of Criminal Appeals of Texas.

September 26, 2007.

David S. Barron, Bryan, for Appellant.

Tuck Moody McLain, District Atty., Anderson, Matthew Paul, State's Atty., Austin, for State.

OPINION

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

Barry Louis Pizzo appealed his conviction for indecency with a child by contact, alleging that he was denied the right to a unanimous verdict because the indictment alleged breasts and genitals in the conjunctive and the instruction authorized a conviction if the jury found that he touched the breasts or genitals of the victim. Finding that the instruction properly charged different methods of commission disjunctively, the lower court affirmed.¹ We reverse and remand for a harm analysis.

Procedural Background

Pizzo was charged with, among other things, indecency with a child by contact in violation of Section 21.11(a)(1) of the Penal Code.² Counts II and III of the indictment alleged that Pizzo

on or about the 21st day of June, 2001 . . . did then and there, with the intent to arouse and gratify the sexual desire of said Defendant, intentionally and knowingly engage in sexual contact by touching the GENITALS AND BREASTS, of [A.S.], a child younger than 17 years of age and not the spouse of the Defendant.

The evidence presented at trial showed that on two separate occasions — one in A.S.'s house and one in Pizzo's trailer — Pizzo touched both the breasts and genitals of A.S. At the charge conference, asserting his right to a unanimous jury verdict, Pizzo objected to the proposed charge because the application paragraphs as to Counts II and III set out the form of sexual contact in the disjunctive. Pizzo stated:

the words `breast' or `genitals' in each, are charged obviously in the disjunctive. I'm requesting that they be charged in the conjunctive with an `and' because otherwise, you don't know if six jurors decided `genitals' and six decided `breasts,' and the possibility of a non-unanimous verdict because it's charged in the same paragraph.

The trial judge overruled the objection and the charge submitted to the jury on Counts II and III read, in part, as follows:

if you find from the evidence, beyond a reasonable doubt, that on or about the 21st day of June, 2001 in Grimes County, Texas the defendant, BARRY LOUIS PIZZO, did then and there intentionally or knowingly engage in sexual contact with [A.S.] by touching the genitals or breasts of [A.S.], and [A.S.] was then and there under the age of seventeen years and not the spouse of the defendant, and that said act, if any, was committed with the intent on the part of the defendant to arouse or gratify the sexual desire of himself, then you will find the defendant guilty. . . .

As to Count II, the jury found Pizzo guilty and sentenced him to nine years' imprisonment and assessed a $7,000 fine. And, as to Count III, the jury found Pizzo not guilty.

Pizzo appealed his conviction under Count II and, in his sole point of error, he claimed that the trial judge erred "by overruling his objection to the court's charge requesting that the terms `breast or genitals' be charged in the conjunctive rather than in the disjunctive."³ In a memorandum opinion affirming the judgment of the trial court, the Corpus Christi Court of Appeals held that Pizzo was not denied his right to a unanimous verdict because the trial judge "properly charged both means of sexual contact disjunctively."⁴ The court concluded that our holding in Kitchens v. State⁵ was controlling.⁶ In doing so, the court relied on the following statements from our opinion in Kitchens:

although the indictment may allege the differing methods of committing the offense in the conjunctive, it is proper for the jury to be charged in the disjunctive. It is appropriate where the alternative theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted.⁷

In short, the court of appeals concluded that the touching of the breasts and genitals, which occurred during the same encounter, were not separate offenses but were only different means of committing the offense of indecency with a child by contact.⁸

Pizzo filed a petition for discretionary review. We granted review to determine whether the court of appeals erred by failing to apply our ruling in Francis v. State, where we held that it was error to charge in the conjunctive when the breast-touching and genital-touching incidents were two separate indecency by contact offenses because they occurred on different dates.⁹ Citing Francis, Pizzo's ground for review asks: Did the court of appeals err "in holding that the trial court's submission of a disjunctive in the court's charge concerning two different offenses, both constituting the offense of indecency with a child, was not a denial of [his] right to a unanimous jury verdict?" We conclude that the court of appeals erred because the jury instruction improperly charged two separate offenses in the disjunctive and therefore permitted a conviction on less than a unanimous verdict.

Law and Analysis

"Under our state constitution, jury unanimity is required in felony cases, and, under our state statutes, unanimity is required in all criminal cases."¹⁰ Unanimity ensures that all jurors reach a consensus "on the same act for a conviction."¹¹ To discern what a jury must be unanimous about, appellate courts examine the statute defining the offense to determine whether the Legislature "creat[ed] multiple, separate offenses, or a single offense" with different methods or means of commission.¹² "[J]ury unanimity is required on the essential elements of the offense" but is "generally not required on the alternate modes or means of commission."¹³ Therefore, it is necessary to identify the essential elements or gravamen of an offense and the alternate modes of commission, if any.¹⁴ This is accomplished by diagramming the statutory text according to the rules of grammar.¹⁵ The essential elements of an offense are, at a minimum: (1) "the subject (the defendant);" (2) "the main verb;" (3) "the direct object if the main verb requires a direct object (i.e., the offense is a result-oriented crime);"¹⁶ "the specific occasion[;]"¹⁷ and the requisite mental state. The means of commission or nonessential unanimity elements are generally set out in "adverbial phrases" that describe how the offense was committed.¹⁸ Such phrases are commonly preceded "by the preposition `by[.]'"¹⁹

The unanimity requirement is not violated when the jury has the option of choosing between alternative modes of commission.²⁰ Therefore, different modes of commission may be presented in a jury instruction in the disjunctive when the charging instrument, in a single count, alleged the different means in the conjunctive.²¹

The version of the indecency with a child statute, Section 21.11, Penal Code, in effect when Pizzo committed the offense stated: "(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he: (1) engages in sexual contact with the child; . . . ."²² The definition of "sexual contact," located in Section 21.01(2) of the Penal Code, was defined as follows: "any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person."²³

Pizzo argues that the definition of sexual contact includes three "separate and discrete" offenses and that "the disjunctive pleading leaves all to speculate as to whether the verdict was truly unanimous — or whether the jurors were divided on that count or paragraph between the breast-touching and the genital-touching." Pizzo therefore claims that this case is controlled by Francis, which "condemned this type of charge under these circumstances." The State contends that the touching of the breast and genitals are different methods of committing the offense of indecency by contact "and therefore, may be proved disjunctively." The State asserts: "Where both types of contact occur at the same time, they constitute a single act." Because each incident involved the touching of the breasts and genitals, the State maintains that Francis is inapplicable.

Before we analyze the text of Penal Code Sections 21.11(a)(1) and 21.01(2), we consider our opinions in Kitchens, which the court of appeals relied on in affirming Pizzo's conviction, and Francis, which Pizzo relies on to support his claim of error by the court of appeals.

In Kitchens, we were called upon to decide whether the jury instruction, which set out two alternative ways of committing capital murder — in the course of sexual assault or robbery — in one application in the disjunctive when the two alternative theories had been alleged in separate paragraphs of the indictment in the conjunctive, failed to require a unanimous jury verdict.²⁴ We concluded that a jury may issue a general verdict where different modes of commission are submitted in the disjunctive and there is sufficient evidence to support either mode of commission.²⁵ As a result, we held that the disjunctive jury instruction required a unanimous verdict.²⁶

In Francis, the indictment charged Francis, the appellant, with one count of indecency by contact.²⁷ The State presented evidence of four separate acts but elected to proceed on two of the acts that had occurred on different dates, "one involving the touching of the victim's breasts and one involving the touching of the victim's genitals."²⁸ After the trial judge denied his request to require the State to elect between the two acts, Francis objected to the disjunctive jury instruction, stating "`we would object to the language that says `engage in sexual contact by touching the breast or genitals . . ....