Eaves v. State

1

Rainon Forrest Eaves, Appellant v. The State of Texas, Appellee

No. 03-21-00558-CR

Court of Appeals of Texas, Third District, Austin

October 31, 2023

Do Not Publish

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. CR2020-930, THE HONORABLE STEPHANIE BASCON, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Triana and Smith

MEMORANDUM OPINION

Darlene Byrne, Chief Justice

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.

On October 27, 2021, the jury unanimously convicted Appellant on both counts of indecency with a child and five of the eight counts of sexual assault of a child. At the end of the punishment phase of trial, the jury assessed a variety of sentences for the convictions; ultimately, Appellant was sentenced to twenty-five years' imprisonment.^[2] This appeal followed.

FAILURE TO MAKE ELECTION CHALLENGE

In his first issue, Appellant argues that the trial court erred by failing to require the State to make an election as to the manner and means for each of the sexual assault of a child counts. Appellant referenced the following language in the individual counts^[3]:

Count 4: "[Appellant] did then and there intentionally or knowingly cause the penetration of the sexual organ of [the victim], a child who was younger than 17 years of age, by the mouth or tongue of the said [Appellant] OR . . . . [Appellant] did then and there intentionally or knowingly cause the sexual organ of [the victim], a child who was younger than 17 years of age, to contact the mouth or tongue of the said [Appellant] . ." Count 5: "[Appellant] did then and there intentionally or knowingly cause the penetration of the sexual organ of [the victim], who was a child 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 sexual organ of [the victim], a child who was younger than 17 years of age, to contact the male sexual organ of the said [Appellant] . . . ."

Count 6: "[Appellant] did then and there intentionally or knowingly cause the penetration of the sexual organ of [the victim], who was a child 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 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...