Neftaly Nunez A/K/A Neftali Nunez Gonzalez A/K/A Neftali Nunez v. State ( 2019 )

NUMBER 13-17-00671-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
NEFTALY NUNEZ A/K/A NEFTALI
NUNEZ GONZALEZ A/K/A NEFTALI
NUNEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 357th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Hinojosa
Memorandum Opinion by Justice Longoria
Appellant Neftaly Nunez a/k/a Neftali Nunez Gonzalez a/k/a/ Neftali Nunez was
convicted for aggravated sexual assault of a child and indecency with a child. See TEX.
PENAL CODE ANN. §§ 22.021(a)(2)(B), 21.11(a)(1) (West, Westlaw through 2017 1st C.S.).
By eight issues, which we have renumbered, Nunez argues on appeal that (1) the
evidence was legally insufficient to support his convictions, and that the trial court erred
by: (2) denying his motion to sever; (3) allowing biased jurors to remain on the panel; (4)
failing to remain impartial and neutral; (5) denying his oral motion for continuance; (6)
admitting certain expert testimony; (7) allowing the State to make inappropriate closing
arguments; and (8) improperly instructing the jury in the jury charge. We affirm.
I. BACKGROUND
Nunez was indicted on charges of aggravated sexual assault of a child, a first-
degree felony (count one), and indecency with a child, a second-degree felony (count
two). See id. §§ 22.021(a)(2)(B), 21.11(a)(1). Trial began on November 14, 2017.
S.L. 1, the child complainant in count one, testified that Nunez is a friend of her
mom’s friend, S.C. According to S.L., S.C. and Nunez spent a lot of time with S.L.’s
family, including on the date of the alleged incident, January 9, 2013. S.L. asserted that
Nunez was asked to get soda for a party and that she and Nunez left together to acquire
soda. S.L. claims that Nunez took her to a remote area and sexually assaulted her before
returning to the party. S.L. also admitted that she did not like Nunez because she
witnessed him grabbing S.C.’s throat and pushing her.
A.G., the child complainant in count two, is the daughter of S.C. According to A.G.,
Nunez touched her breast and “private part” two times when she was about seven or
eight years old and lived in an apartment. She testified that Nunez additionally touched
her breast and “private part,” both over and under the clothes, twice while she was at her
1 To protect the identity of the children, we refer to them using initials. See TEX. R. APP. P. 9.8(b).
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grandmother’s house. She further testified that Nunez touched her breast and penetrated
her “private part” with his finger three times while living in a trailer.
Sonja Edelman, a forensic nursing expert for the State, testified regarding female
physiology, sexual assault, and her experience conducting interviews of sexual assault
complainants.
Detective Sam Lucio, a police detective for the City of Brownsville, the lead
investigator in the case, testified about his investigations in this case.
After the State rested, Nunez’s wife, Joanna Nunez, testified that she married
Nunez in 2010. According to her, she “ended the marriage because he cheated on me
with [S.C.], the victim’s mother.” Joanna claimed that S.C. has had contact with Nunez
in the last year.
Nunez took the stand and denied touching either of the child complainants. He
asserted that the grandmother’s house was so small, he never would have been alone
with the children long enough to have to commit the alleged offenses.
The next day, the jury charge was read to the jury without any objections by either
party. The jury returned a guilty verdict on both counts. On count one, the jury returned
a sentence of sixty years’ imprisonment in the Institutional Division of the Texas
Department of Criminal Justice. On count two, the jury returned a sentence of twenty
years’ imprisonment in the Institutional Division of the Texas Department of Criminal
Justice. The trial court sentenced Nunez according to the punishment assessed by the
jury. This appeal followed.
II. LEGAL SUFFICIENCY
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In his first issue, Nunez argues that there was legally insufficient evidence to
establish that he committed the offenses.
A. Standard of Review and Applicable Law
When reviewing the legal sufficiency of the evidence, “the relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007) (emphasis in original); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). The fact
finder is the exclusive judge of the facts, the credibility of the witnesses, and the weight
to be given to the testimony. See Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App.
2008). “The jury may choose to believe or disbelieve any portion of the witnesses’
testimony.” Bargas v. State, 252 S.W.3d 876, 887 (Tex. App.—Houston [14th Dist.] 2008,
no pet.). A reviewing court cannot overturn a conviction simply because it disagrees with
the jury’s verdict. See id.
There may be insufficient evidence to support a conviction if there is a “fatal
variance” between the “offense as charged in the indictment and the offense proved.”
Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995). A variance is fatal only if
it surprises or misleads the party to his prejudice. See id.
B. Analysis
1. Identity of the Complainants
Nunez’s complaint that there was a variance between the indictment and the
evidence adduced at trial will be treated as an insufficiency claim. See Gollihar v. State,
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46 S.W.3d 243, 247 (Tex. Crim. App. 2001) (“[W]e have routinely treated variance claims
as insufficiency of the evidence problems.”).
Nunez first argues that there is no evidence that the children who testified at trial
are the same child complainants alleged in the indictment. According to Nunez, the State
failed to provide him with a pseudonym affidavit, and therefore he was not properly
informed that the State was going to use pseudonyms for the complainants. See TEX.
CODE CRIM. PROC. ANN. art. 57.02(b) (West, Westlaw through 2017 1st C.S.).
The Texas Court of Criminal Appeals has rejected a similar argument. See
Stevens, 891 S.W.2d at 651. In Stevens, the indictment referred to the complainant using
a pseudonym, but throughout the trial, the complainant was referred to using his legal
name. See id. The defendant complained that there was a fatal variance between the
indictment and the evidence at trial. But the court reasoned:
[b]y enacting art. 57.02, the Legislature changed the manner in which the
victim may be alleged in an indictment. In doing so the Legislature sought
to address and satisfy two competing interests: the defendant’s due
process right to notice of the offense for which he was indicted; and, the
victim’s interest in avoiding the embarrassment associated with a public
pronouncement of the details of the alleged offense. The pseudonym is
used to protect the victim—not to deprive the defendant of notice.
Therefore, we hold the fatal variance doctrine is inapplicable to pseudonym
cases so long as the defendant’s due process right to notice is
satisfied. Appellant does not, and indeed could not, contend he was
surprised to learn the victim’s identity.
Id. (internal citations omitted). The same is true in Nunez’s case. He cannot argue that
he was surprised or misled by the evidence at trial concerning the identity of the child
complainants. See id. At no point during the trial did Nunez express confusion or surprise
over the identity of the complainants. In addition, the pseudonyms used, S.L. and A.G.,
were clear enough to make it obvious which child complainant was being referred to. See
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id. (finding no due process violation even though the pseudonym in the indictment was a
number). The variance between the indictment and the names used at trial was not
material. See Gollihar, 46 S.W.3d at 257 (“In summary, we hold that when faced with a
sufficiency of the evidence claim based upon a variance between the indictment and the
proof, only a ‘material’ variance will render the evidence insufficient.”). We conclude there
was legally sufficient evidence to establish the identity of the complainants. See Stevens,
891 S.W.2d at 651.
2. Intent to Arouse or Gratify Sexual Desire
Second, Nunez argues that the evidence was insufficient to prove that he had the
specific intent to arouse or gratify his sexual desire as it related to count two, indecency
with a child. “An essential element of the offense of indecency of a child is the mental
state that accompanies the forbidden conduct: the specific intent to arouse or gratify the
sexual desire of any person.” McKenzie v. State, 617 S.W.2d 211, 213 (Tex. Crim. App.
1981); Gonzalez v. State, 522 S.W.3d 48, 57 (Tex. App.—Houston [1st Dist.] 2017, no
pet.). Nunez argues that the evidence at trial only amounted to “he touched my breast
over and under the clothes.” According to Nunez, the record is devoid of any evidence
of his specific intent to arouse his sexual desire.
However, the specific intent required for the offense of indecency with a child may
be inferred from a defendant’s conduct, his remarks, and all of the surrounding
circumstances. See Gonzalez, 522 S.W.3d at 57; Connell v. State, 233 S.W.3d 460, 467
(Tex. App.—Fort Worth 2007, no pet.). An oral expression of intent is not required where
the conduct itself is sufficient to infer intent. See Connell, 233 S.W.3d at 467.
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Furthermore, a child complainant’s testimony alone is sufficient to support a conviction
for indecency with a child. See id. at 466.
A.G. testified that Nunez walked into her bedroom while she was in bed and began
to touch her on her breast and vagina, both over and underneath her clothes. She
testified that this happened six or seven times, and that Nunez penetrated her vagina with
his finger on at least three of those occasions. The jury, as the sole judge of the credibility
of the witnesses, was free to believe A.G.’s testimony, and it could have reasonably found
from A.G.’s testimony that Nunez touched A.G. with the intent to arouse or gratify his
sexual desire. See id. Therefore, we conclude that the evidence adduced was sufficient
to support Nunez’s conviction for indecency with a child. See Gonzalez, 522 S.W.3d at
57; Connell, 233 S.W.3d at 467.
C. Summary
In summary, there was legally sufficient evidence concerning the identity of the
complainants. See Stevens, 891 S.W.2d at 651. There was also legally sufficient
evidence to support Nunez’s conviction for indecency with a child. See Gonzalez, 522
S.W.3d at 57. We overrule Nunez’s first issue.
III. MOTION TO SEVER
In his second issue, Nunez argues that the trial court abused its discretion in
denying his motion to sever.
A. Standard of Review and Applicable Law
We review a trial court’s ruling on a request to sever for an abuse of discretion.
See Hodge v. State, 500 S.W.3d 612, 621 (Tex. App.—Austin 2016, no pet.). The ruling
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of the trial court is not an abuse of discretion so long as it falls “within the zone of
reasonable disagreement.” Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002).
In general, a defendant who timely objects to the joinder of two or more cases
consolidated or joined for trial has a right to severance. See TEX. PENAL CODE ANN.
§ 3.02(a) (West, Westlaw through 2017 1st C.S.). However, this right does not apply for
prosecutions for certain crimes, including indecency with a child and aggravated sexual
assault of a child, “unless the court determines that the defendant or the state would be
unfairly prejudiced by a joinder of offenses.” Matthews v. State, 152 S.W.3d 723, 730
(Tex. App.—Tyler 2004, no pet.); see TEX. PENAL CODE ANN. §§ 3.03(b), 3.04 (West,
Westlaw through 2017 1st C.S.). There is no presumption that consolidation is unfairly
prejudicial; instead, it is the defendant’s burden to show how he would be unfairly
prejudiced by the joinder. See Hodge, 500 S.W.3d at 621. To be entitled to a severance,
the defendant must show “some type of prejudice beyond that which a defendant would
automatically face in any case in which felony counts are joined.” Id. at 622.
B. Analysis
Before voir dire began on November 13, 2017, Nunez filed a motion to sever, which
the trial court denied. In his motion, he argued he would be unfairly prejudiced by having
offenses allegedly committed against two separate child complainants consolidated into
a single case. Nunez argued that if he were convicted, the difference in sentence was as
substantial as “life versus 20 years.” In other words, the only argument that Nunez
proffered for severing was the difference in potential sentences for the two offenses.
However, that is not a distinction that is unique to this case; to the contrary, that is the
type of prejudice any defendant would automatically face in any case in which a first-
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degree felony and a second-degree felony are joined together. See id. Thus, Nunez did
not meet his burden of showing an unfair prejudice, and the trial court did not abuse its
discretion in denying Nunez’s motion to sever. We overrule Nunez’s second issue.
IV. JURY PANEL ERROR
In his third issue, Nunez argues that the trial court abused its discretion by allowing
biased jurors to remain on the panel.
A. Standard of Review and Applicable Law
We review a trial court’s ruling on a challenge for cause for an abuse of discretion.
See Bell v. State, 233 S.W.3d 583, 590 (Tex. App.—Waco 2007, pet. ref’d).
We afford the trial court considerable deference, because it is in the best
position to evaluate a prospective juror’s demeanor and responses. We will
reverse a trial court’s ruling on a challenge for cause only if a clear abuse
of discretion is evident. When a prospective juror’s answers are vacillating,
unclear, or contradictory, we accord deference to the trial court’s decision.
We will not second-guess the trial court when the prospective jurors are
persistently uncertain about their ability to follow the law.
Russeau v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005) (internal citation omitted).
A prospective juror should be dismissed for cause when challenged if “he has a
bias or prejudice in favor of or against the defendant.” Anderson v. State, 633 S.W.2d
851, 853 (Tex. Crim. App. 1982); see TEX. CODE CRIM. PROC. ANN. art. 35.16(a) (West,
Westlaw through 2017 1st C.S.). Bias means an inclination to one side of the issue over
the other side of the issue, which leads to the implication that the juror will not be able to
act with impartiality. See Bell, 233 S.W.3d at 590. However, “the mere fact that a juror
knows, or is a neighbor, or an intimate acquaintance of, and on friendly relations with,
one of the parties to a suit, is not sufficient basis for disqualification.” Anderson, 633
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S.W.2d at 853. The trial court has discretion to determine if bias or prejudice is
established to such a degree that the juror is disqualified. See Bell, 233 S.W.3d at 590.
To preserve error for a trial court’s erroneous denial of a challenge for cause, an
appellant must show that: “(1) he asserted a clear and specific challenge for cause; (2)
he used a peremptory challenge on the complained-of venire member; (3) his peremptory
challenges were exhausted; (4) his request for additional strikes was denied; and (5) an
objectionable juror sat on the jury.” Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App.
2010).
B. Analysis
We first note that Nunez has not shown that he preserved this error for review.
More specifically, Nunez has not established that his preemptory challenges were
exhausted and that his request for additional strikes was denied. See id. However, even
assuming that he preserved error, we conclude the trial court did not abuse its discretion
in overruling Nunez’s challenges for cause relating to the two challenged jurors.
1. First Juror
During voir dire, a venireman admitted that she is a teacher and had A.G. as a
student. Nunez attempted to strike the venireman for cause. The following exchange
occurred:
[State]: Is there anything about knowing [A.G.] that would make—that
would make you not be a fair juror in this case.
[Juror 12]: I would like to say no, but—
[State]: Okay. Let me see if I can ask this. The defendant is entitled
to a fair trial?
[Juror 12]: Right.
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[State]: And part of the job of the juror is to weigh the testimony and
credibility of the witnesses. Knowing them, could you be fair
and weigh the truthfulness or voracity [sic] of the student’s
testimony the same way you could any of the other witnesses
and be honest?
[Juror 12]: I mean, honestly I would try my best, but I can’t say with a
hundred percent certainty.
The trial court overruled Nunez’s challenge for cause, and the venireman was empaneled
as juror 12.
Juror 12 vacillated on her answers concerning impartiality, but she is not biased
as a matter of law. See Bell, 233 S.W.3d at 590. She stated that she understands the
defendant’s right to a fair trial and she indicated that she would try to be impartial even
though she was not completely certain of her ability to do so. Thus, we will afford great
deference in this case to the trial court’s discretion because the trial court was in the best
position to evaluate juror 12’s answers and demeanor. See id. The trial court did not
abuse its discretion in overruling Nunez’s challenge for cause concerning juror 12.
2. Second Juror
Nunez asserts that another juror should have been stricken for cause. After A.G.
finished testifying, a juror interrupted the proceedings and requested to speak with the
court. The juror admitted to knowing A.G. and her mom S.C. because he was A.G.’s
teacher in pre-kindergarten. Nunez argued that the juror could not possibly be fair and
impartial, but when questioned by the court, the juror proclaimed that he could be fair and
impartial. The court dismissed the jury panel for the day so the issue could be further
researched. The trial resumed the next day on November 15, 2017. Nunez insisted that
the juror be struck from the panel, but the trial court overruled the challenge for cause.
The trial court then denied Nunez’s motion for mistrial.
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According to Nunez, because the juror did not disclose his relationship with the
child complainant as her pre-kindergarten teacher in voir dire, Nunez was not able to
effectively issue a challenge for cause against him, which hindered his ability to select an
impartial jury. Nunez asserts that the only remedy in such a situation is a mistrial. Nunez
relies on State v. Gutierrez, 541 S.W.3d 91, 99 (Tex. Crim. App. 2017). It is true that the
Court affirmed that “[w]hen a juror withholds material information during voir dire that
the defense, using due diligence, could not uncover, the parties are denied the
opportunity to exercise their challenges, which hinders their selection of an impartial jury.”
Id. at 100. It is further true that the good faith of the juror is “largely irrelevant.” Id.
However, when, as here, the information withheld has a tendency to show bias, it is
appropriate to hold an evidentiary hearing to determine whether the juror is actually
biased. See id.
If a trial judge finds that the juror is not actually biased, and that finding is
supported by the record, then the defendant has not been harmed by the
violation of his constitutional right to an impartial jury. If, however, the judge
finds that the juror is actually biased, the only remedy is a mistrial. We
review the trial court’s determination of historical fact for an abuse of
discretion (i.e., whether the juror was actually biased), and appellate courts
should give almost total deference to the trial court’s determination if it is
supported by the record.
Id. Thus, a mistrial is only appropriate if the juror is “actually prejudiced.” Id.
In the present case, the juror in question asked the court if he could take a break
and approach the judge separately. The juror originally stated that he did not recognize
the names of the witnesses and individuals involved in the case; however, the juror
informed the court at this point that he recognized A.G. and her mom because he was
A.G.’s teacher in pre-kindergarten. The trial court inquired:
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[Court]: [I]s there anything as a result of having her as a Pre-K student
nine years ago that you think will not allow you to be fair and
impartial?”
[Juror]: No, I just wanted—
...
[Court]: And you already told us that there’s nothing about that that
would in any way not allow you to be a fair and impartial juror
in this case; is that correct?
[Juror]: Correct.
We will give almost total deference to the trial court’s determination that the juror
in question would be able to be an impartial juror because the trial court was in the best
position to make that evaluation and the record supports that conclusion. See id. at 103.
The trial court did not abuse its discretion in overruling Nunez’s challenge for cause
regarding this juror.
C. Summary
The trial court did not abuse its discretion in overruling Nunez’s challenges for
cause on either juror. See id. Nunez was also not entitled to a mistrial. See id. We
overrule Nunez’s third issue.
V. COMMENTS BY THE TRIAL COURT
In his fourth issue, Nunez argues that the trial court failed to remain neutral and
impartial and that the trial court’s improper comments constituted fundamental error.
A. Standard of Review and Applicable Law
“In the Texas adversarial system, the judge is a neutral arbiter between the
advocates; he is the instructor in the law to the jury, but he is not involved in the fray.”
Brown v. State, 122 S.W.3d 794, 797 (Tex. Crim. App. 2003). Accordingly, a judge
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shall not discuss or comment upon the weight of the [evidence] or its
bearing in the case, but shall simply decide whether or not it is admissible;
nor shall he, at any stage of the proceeding previous to the return of the
verdict, make any remark calculated to convey to the jury his opinion of the
case.
TEX. CODE CRIM. PROC. ANN. art. 38.05 (West, Westlaw through 2017 1st C.S.).
A trial court may exercise “reasonable control” over the examination of witnesses
and the presentation of evidence as to “(1) make those procedures effective for
determining truth; (2) avoid wasting time; and (3) protect witnesses from harassment or
undue embarrassment.” TEX. R. EVID. 611(a). But, “[t]he trial court improperly comments
on the weight of the evidence if it makes a statement that implies approval of the State’s
argument, indicates disbelief in the defense’s position, or diminishes the credibility of the
defense’s approach to the case.” Simon v. State, 203 S.W.3d 581, 590 (Tex. App.—
Houston [14th Dist.] 2006, no pet.); see Brokenberry v. State, 853 S.W.2d 145, 152 (Tex.
App.—Houston [14th Dist.] 1993, pet. ref’d) (“To constitute reversible error, a comment
by the trial court must be reasonably calculated to benefit the State or prejudice the
defendant’s rights.”).
Absent a clear showing to the contrary, we generally presume that the trial court
was neutral and impartial. See Roman v. State, 145 S.W.3d 316, 319 (Tex. App.—
Houston [14th Dist.] 2004, pet. ref’d). “Thus, judicial remarks during the course of trial
that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.” Garcia v. State, 246 S.W.3d 121,
147 (Tex. App.—San Antonio 2007, pet. ref’d). For example, a trial court’s “expressions
of impatience, dissatisfaction, annoyance, and even anger” do not demonstrate bias or
impartiality. Id.; see Liteky v. United States, 510 U.S. 540, 556 (1994) (“A judge’s ordinary
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efforts at courtroom administration—even a stern and short-tempered judge’s ordinary
efforts at courtroom administration—remain immune” to partiality challenges).
B. Analysis
Nunez contends that throughout the proceedings below, the trial court gave the
impression of “tag-teaming” with the State by making numerous statements that assisted
the State or diminished the credibility of Nunez’s counsel. In total, Nunez alleges that the
following twelve comments by the trial court were inappropriate:
1. telling the prosecutor to “[h]old on, [counsel for State]. I’ve got this”;
2. allowing testimony from Edelman that was allegedly outside of her
realm of expertise;
3. allowing the State, over Nunez’s objection, to allow Detective Lucio
to discuss other cases involving other victims;
4. telling Nunez’s counsel, “[n]o, I didn’t ask you—I did not ask you what
you thought”;
5. telling Nunez’s counsel, “[y]ou are getting pretty wrapped up in your
questions, aren’t you? Well, unwrap yourself, please”;
6. assisting the State in laying the predicate with Detective Lucio
regarding a video it was trying to enter into evidence;
7. interrupting Nunez’s counsel during cross-examination of Detective
Lucio, without any prompting or objections from the state, asking
about the relevance of the cross-examination;
8. informing Nunez’s counsel that “I hope you tie it in because I’ll never
trust you on relevance again”;
9. holding an off-record bench conference with only Nunez’s counsel,
not the State;
10. after the State requested to explain why challenged testimony was
relevant, commenting, “well, I did that with [Nunez’s co-counsel] and
he never got relevant”;
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11. telling Nunez, without any objections by the State, to only answer the
question asked and to not provide extra information; and
12. saying, “It’s argument, Counsel,” when Nunez objected to the State’s
closing comments;
1. Comments 1, 2, and 3
Comments 1, 2, and 3 relate specifically to the trial court’s decision to admit expert
testimony. A trial court’s decision to admit or exclude expert testimony is reviewed for an
abuse of discretion. See Lopez, 86 S.W.3d at 230; E.I. du Pont de Nemours & Co., Inc.
v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995); Kelly v. State, 824 S.W.2d 568, 572 (Tex.
Crim. App. 1992).
Comment 1 concerned the State’s expert Edelman. The State began to question
Edelman regarding her credentials as an expert in forensic nursing. Nunez objected that
the testimony was veering into personal experience as opposed to expert opinion. The
State responded that Edelman, as an expert, “can testify about what she’s seen in the
past in her field.” The trial court responded, “Hold on, [counsel for State]. I’ve got this.
[Counsel for Nunez], an expert can opine on many areas of expertise. If she’s certainly
within the realm of her knowledge, the Court will allow it. Proceed, ma’am. Your objection
is overruled.” The trial court was merely informing the parties that it had already reached
a conclusion concerning the admissibility of the evidence and then briefly explained why
it was overruling the objection, indicating that no further argument was needed on the
topic.
Concerning comment 2, Nunez had objected to Edelman’s testimony, complaining,
“I believe this does go outside the scope of her expertise. It’s in forensic nursing, not child
psychology.” The court simply responded, “Yes, but they’re intertwined at this point. That
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will be overruled. Go ahead, ma’am.” Likewise, comment 3 was related to Detective
Lucio’s expert testimony. Nunez objected “to the narrative” and “to relevance.” To both
objections, the court merely replied, “overruled.”
Comments 1, 2, and 3 were not calculated to benefit the State or hurt Nunez; the
trial court simply overruled Nunez’s objections to the State’s expert witnesses and gave
brief explanations as to why it was making those decisions. See Lopez, 86 S.W.3d at
230; Robinson, 923 S.W.2d at 554. 2 These three comments were not improper.
2. Comments 6, 7, 8, 10, 11, and 12
Comments 6, 7, 8, 10, 11, and 12 are all examples of the trial court’s management
of the admissibility and presentation of evidence. See TEX. R. EVID. 611(a). For example,
comment 6 was related to the trial court “assisting” the State lay the predicate for a video
to be admitted into evidence. However, the trial court can exercise reasonable control to
manage the admissibility of evidence. See id. These comments were not made to bolster
the State or diminish Nunez; they did not reflect approval of the State’s arguments or
disapproval of Nunez’s position. See Simon, 203 S.W.3d at 590.
Comments 7 and 8 involved the trial court asking about relevance. During
Detective Lucio’s cross-examination, without any prompting from the State, the trial court
intervened:
[Court]: Counsel, can you—can you help me out here and give us
some light on relevance?
[Nunez’s
Counsel]: Yes, Your Honor.
[Court]: Of the whole process, relevance?
2 Nunez separately challenges the admissibility of Edelman’s testimony in issue 6.
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[Nunez’s
Counsel]: Yes, Your Honor. If the Court will give me leeway with about
two more questions, I’ll get to that.
[Court]: I hope you tie it in because I’ll never trust you on relevance
again. All right. I’ll give you two more questions.
But again, the trial court can exercise reasonable control to manage the admissibility of
evidence. See TEX. R. EVID. 611(a). The trial court’s unprompted inquiry into relevance
was not made to bolster the State or diminish Nunez. See Simon, 203 S.W.3d at 590.
The trial court may sua sponte inquire about relevance. See Avilez v. State, 333 S.W.3d
661, 674 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (finding it was not unfair of the
trial court to constantly reinforce the importance of relevance). Thus, comment 7 was not
improper or convey bias.
Concerning comment 8, although it was perhaps a poor choice of words by the
trial court to tell Nunez’s counsel that he would never trust him again on relevance, it was
still an exercise of the trial court’s duties to oversee the admission of evidence by
reinforcing the importance of relevance. See id. Nunez fails to show how this comment
“detrimentally affected his rights.” Brokenberry, 853 S.W.2d at 152. And more
importantly, judicial remarks during the course of trial that are critical or disapproving of
counsel will not support a partiality challenge unless the comments display “deep-seated
favoritism or antagonism that would make judgment impossible.” Liteky, 510 U.S. at 556.
Comment 8 does not convey such deep-seated favoritism; therefore, comment 8 did not
improperly convey bias.
Comment 10 was made during Nunez’s testimony. The State objected on
relevance grounds. After Nunez’s counsel briefly defended its position, the following
exchange transpired:
18
[Court]: How is that relevant?
[Nunez’s
Counsel]: If I’m allowed to express, Judge?
[Court]: Well, I did that with [Nunez’s other counsel] and he never got
relevant.
The trial court ultimately overruled the State’s objection. Once again, the trial court can
exercise reasonable control to manage the admissibility of evidence. See TEX. R. EVID.
611(a). Here, the State raised the original objection as to relevance and the court followed
up on that objection. The trial court’s inquiry into relevance was not made to bolster the
State or diminish Nunez. See Simon, 203 S.W.3d at 590. It was not improper for the trial
court to reinforce to the attorneys the importance of sticking to relevant testimony. See
Avilez, 333 S.W.3d at 674. The trial court’s comment about Nunez’s counsel did not
detrimentally affect Nunez’s rights. See Brokenberry, 853 S.W.2d at 152. And once
again, judicial remarks during the course of trial that are critical of, or hostile to, counsel
will not support a partiality challenge unless the comments display “deep-seated
favoritism or antagonism that would make judgment impossible.” Liteky, 510 U.S. at 556.
And expressions of “impatience, dissatisfaction, annoyance, and even anger” do not
demonstrate bias or impartiality. Garcia, 246 S.W.3d at 147. Therefore, we conclude
that comment 10 did not convey bias.
Comment 11 was made during Nunez’s direct examination:
[Nunez’s
Counsel]: Do you remember speaking to your wife while you were
locked up at the Travis County Jail?
[Nunez]: Yes, and she would also visit me.
19
[Court]: Mr. Nunez, you’ve answered the question. The first answer
was yes. That answers the question, okay. So just answer
the question. All right. Proceed, [counsel for Nunez]?
Nunez argues that it was improper to tell Nunez, without prompting from the State, to only
answer the question asked. However, it is within the court’s duties to manage the
admissibility of evidence. See TEX. R. EVID. 611(a); Avilez, 333 S.W.3d at 674 (holding
that it was not improper for the trial court to instruct witnesses to limit their responses to
the questions asked). This comment was not made to diminish Nunez’s case. See
Simon, 203 S.W.3d at 590.
Likewise, comment 12 was simply a brief explanation of the trial court’s reasoning
for overruling Nunez’s objections to the State’s closing arguments. During the closing
arguments, the State remarked that Nunez’s theories were all just “smoke” and then
asserted that “[t]here’s zero evidence to support any of [Nunez’s] claims.” Nunez objected
to this commentary as “burden shifting.” The trial court overruled the objection. The State
continued: “The defendant, when he took the stand, provided no evidence to support his
claim.” Nunez’s counsel once again objected, stating, “Again, Judge, I believe that’s
burden shifting. It’s telling the jury that he’s required to bring some evidence.” The trial
court responded, “Move on. Sustained. Move on. Let’s go. It’s argument, Counsel.”
These comments were not calculated to benefit the State or injure Nunez. See Simon,
203 S.W.3d at 590. In fact, the trial court sustained Nunez’s objection. And expressions
of “impatience, dissatisfaction, annoyance, and even anger” do not demonstrate bias or
impartiality. Garcia, 246 S.W.3d at 147. Therefore, we conclude that comment 12 did
not convey bias or detrimentally affect Nunez’s rights. See Brokenberry, 853 S.W.2d at
152.
20
3. Comments 4 and 5
Similarly, comments 4 and 5 did not detrimentally affect Nunez’s rights. See id.
Concerning comment 4, Nunez’s counsel raised an objection to part of Detective Lucio’s
testimony, arguing that the current line of questions was leading Detective Lucio to an
“ultimate answer that’s for the jury to decide.” Then the following exchange occurred:
[Court]: Well, did they go right now? Is it your position that that
question took him there?
[Nunez’s
Counsel]: I think that that’s where the detective—
[Court]: No, I didn’t ask you—I did not ask you what you thought. I
asked is that what you’re telling me?
The trial court’s comment was made in the context of trying to figure out Nunez’s counsel’s
exact objection. This statement was not calculated to benefit the State or injure Nunez.
See Simon, 203 S.W.3d at 590. And expressions of “impatience, dissatisfaction,
annoyance, and even anger” do not demonstrate bias or impartiality. Garcia, 246 S.W.3d
at 147. Therefore, comment 4 did not convey bias.
Comment 5 transpired during cross-examination of Detective Lucio. Nunez’s
counsel accidentally referred to S.C. when he intended to refer to A.G. The following
exchange occurred:
[State]: Your Honor, I’m going to object just for clarification. He called
the witness [S.C.].
[Nunez’s
Counsel]: I’m sorry, [A.G.].
[State]: Just want to make sure the record is clear.
[Court]: You are getting pretty wrapped up in your questions, aren’t
you?
21
[Nunez’s
Counsel]: Yes, Your Honor.
[Court]: Well, unwrap yourself, please.
[Nunez’s
Counsel]: I’ll withdraw the question, Judge.
Although perhaps a poor choice of words, telling Nunez’s counsel to “unwrap” does
not reflect a “disbelief in the defense’s position” or an attempt to “diminish[] the credibility
of the defense’s approach to the case.” Id. We fail to see how this comment detrimentally
affected Nunez’s rights. See Brokenberry, 853 S.W.2d at 152. And more importantly,
judicial remarks during the course of trial that are critical or disapproving of, or even hostile
to, counsel will not support a partiality challenge unless the comments display “deep-
seated favoritism or antagonism that would make judgment impossible.” Liteky, 510 U.S.
at 556.
4. Comment 9
Comment 9 was outside the presence of the jury and off the record and thus could
not improperly influence the jury. See Strong v. State, 138 S.W.3d 546, 553 (Tex. App.—
Corpus Christi 2004, no pet.) (concluding that the trial court’s comments could not unfairly
influence the jury because the comments were made outside of the jury’s presence).
5. Summary
We conclude that none of the alleged improper comments detrimentally affected
Nunez’s rights. See Brokenberry, 853 S.W.2d at 152. None of the trial court’s comments
displayed a “deep-seated favoritism or antagonism that would make judgment
impossible.” Liteky, 510 U.S. at 556. And looking at the cumulative effect of all of the
comments by the trial court, we have a fair assurance that any alleged error did not
22
“influence the jury, or had but a slight effect.” Simon, 203 S.W.3d at 593. We overrule
Nunez’s fourth issue.
VI. MOTION FOR CONTINUANCE
In Nunez’s fifth issue, he contends that the trial court abused its discretion in
denying his motion for continuance when Nunez was presented with Brady evidence the
morning the trial was to begin.
A. Standard of Review and Applicable Law
Generally, to preserve the denial of a motion for continuance for appellate review,
a sworn written motion for continuance is required. See Anderson v. State, 301 S.W.3d
276, 279 (Tex. Crim. App. 2009). However, “[i]f a trial court’s decision to not grant an oral
unsworn motion amounts to a denial of fundamental principles of due process, the ruling
is subject to appellate review.” O’Rarden v. State, 777 S.W.2d 455, 459 (Tex. App.—
Dallas 1989, pet. ref’d). The trial court’s decision to grant or deny an oral, unsworn motion
for continuance on equitable grounds will only be overturned for a clear abuse of
discretion. See Munoz v. State, 24 S.W.3d 427, 432 (Tex. App.—Corpus Christi 2000,
no pet.).
“The State has an affirmative duty to disclose exculpatory evidence that is material
either to guilt or punishment.” Perez v. State, 414 S.W.3d 784, 789 (Tex. App.—Houston
[1st Dist.] 2013, no pet.) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). To establish
a due process violation under Brady, the defendant must show: (1) the suppression of
evidence by the prosecution; (2) the suppressed evidence was favorable to the
defendant; and (3) the materiality of the suppressed evidence. See Perez, 414 S.W.3d at
789. Evidence is “material” when there is a reasonable probability that the result of the
23
proceeding would have been different had the evidence been disclosed. See Ex parte
Carty, 543 S.W.3d 149, 180 (Tex. Crim. App. 2018).
B. Analysis
On November 14, before the trial began, Nunez asked the court to grant a mistrial
or continuance on the basis that he had just received Brady material from the State that
morning at approximately 6:00 a.m. via e-mail. See Brady, 373 U.S. at 87. The Brady
material was from an interview the State had just conducted with A.G. the day before.
The interview revealed new allegations that Nunez had not only touched her breast but
also her vagina. Nunez orally requested a continuance, but the trial court denied the
continuance and Nunez’s subsequent motion for mistrial; however, the trial court allowed
Nunez to have a running objection to the Brady material. Because Nunez’s motion for
continuance was oral, we will only overturn the trial court’s decision if the trial court clearly
abused its discretion. See Munoz, 24 S.W.3d at 432.
Nunez first contends that the State negligently suppressed evidence by failing to
interview A.G. prior to the day before trial. However, this is not a case where the State
received Brady evidence but then sat on it and failed to turn it over to the defense. See
Perez, 414 S.W.3d at 789. Instead, the State explained to the trial court that it had
tremendous difficulty in meeting with A.G. because her father did not want her to
participate in the trial. The State ultimately had to subpoena A.G. and her father to come
in for an interview. The State exercised due diligence in conducting the interview and
promptly turned the evidence over to Nunez the next day. See id. Brady material can
even be turned over to the defendant during trial as long as the defendant “received the
material in time to put it to effective use at trial.” Id. In the present case, A.G. was a
24
witness at the trial subject to cross-examination, meaning Nunez had ample opportunity
to cross-examine A.G. concerning her allegations. See id.
Lastly and most importantly, Nunez does not show how the outcome of the trial
would have been any different had the motion for continuance been granted. See Ex
parte Carty, 543 S.W.3d at 180 (Walker, J., concurring). Nunez fails to explain how this
evidence was material for Brady purposes. In other words, Nunez does not explain how
this evidence would “make the difference between conviction and acquittal.” Pena v.
State, 353 S.W.3d 797, 811 (Tex. Crim. App. 2011). Therefore, we cannot conclude that
denying Nunez’s oral motion for continuance denied him the fundamental principles of
due process. See Munoz, 24 S.W.3d at 431. The trial court did not abuse its discretion
in denying his motion for continuance. We overrule Nunez’s fifth issue.
VII. EXPERT TESTIMONY
In his sixth issue, Nunez argues that the trial court abused its discretion in allowing
Edelman to testify on subjects outside her expertise.
A. Standard of Review and Applicable Law
The decision to admit scientific evidence is reviewed for an abuse of discretion.
See Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008); Hinojosa v. State, 4
S.W.3d 240, 251 (Tex. Crim. App. 1999). However, “[a] criminal conviction should not be
overturned for non-constitutional error under Rule 44.2(b) if the appellate court, after
examining the record as whole, has fair assurance that the error did not influence the jury,
or had only a slight effect.” Johnson v. State, 967 S.W.2d 410 at 417 (Tex. Crim. App.
1998); see Trevino v. State, 228 S.W.3d 729, 743 (Tex. App.—Corpus Christi 2006, pet.
ref’d) (“Rule 44.2(b) requires us to examine error in relation to the entire proceeding and
25
determine whether it had a substantial and injurious effect or influence in determining the
jury’s verdict.”).
The admissibility of expert testimony is governed by Texas Rule of Evidence 702.
Under Rule 702, a trial court’s first task is “to determine whether the testimony is
sufficiently reliable and relevant to help the jury in reaching accurate results.” Kelly, 824
S.W.2d at 572; see TEX. R. EVID. 702; Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim.
App. 2017). If the trial judge finds that the proposed expert testimony meets the
requirements of Rule 702, then the judge performs a Rule 403 analysis to determine if
the evidence should be presented to the jury. See Kelly, 824 S.W.2d at 572. Under Rule
403, relevant evidence may be excluded if its probative value is substantially outweighed
by the danger of one or more factors, including the danger of unfair prejudice or
misleading the jury. See TEX. R. EVID. 403.
B. Analysis
During trial, Nunez made several objections to Edelman’s testimony, such as
complaining she had no personal knowledge, she was testifying outside the realm of her
expertise, and she was simply there to “bolster the State’s case.” On appeal, Nunez does
not argue that Edelman’s testimony should have been excluded under Rule 702; Nunez
instead asserts that her testimony should have been excluded under Rule 403 because
the probative value of her testimony was substantially outweighed by the danger of unfair
prejudice. See id. More specifically, he complains that experts “should not be allowed to
give their opinion on the accuracy, reliability, or credibility of a particular witness in the
case being tried.” Schutz v. State, 957 S.W.2d 52, 67 (Tex. Crim. App. 1997).
26
During cross-examination, Nunez’s counsel asked Edelman if there was any
physical evidence of sexual assault. Edelman responded by confirming that there was
no physical evidence:
[Nunez’s
Counsel]: In other words, the exam itself didn’t lead to any evidence one
way or the other?
[Edelman]: Well, the sexual assault exam did because we have a patient
history.
Edelman was not giving her opinion on the child complainant’s truthfulness or credibility;
she merely commented that the child complainant’s testimony constituted some evidence
of sexual assault, even though there was no physical evidence of assault. See id.
Nothing in the record suggests that the probative value of this comment or anything else
Edelman said was outweighed by one of the Rule 403 factors. See TEX. R. EVID. 403.
Given the number of witnesses who testified against Nunez, some of whom gave
much more graphic depictions of the allegations, Edelman’s testimony did not have a
substantial or injurious effect upon the jury verdict. See Llamas v. State, 12 S.W.3d 469
at 471 (Tex. Crim. App. 2000). Even if there was any error in admitting Edelman’s
testimony, we have a fair assurance that it did not affect the jury or that it only had a slight
effect. See Johnson, 967 S.W.2d 410 at 417. We overrule Nunez’s sixth issue.
VIII. CLOSING STATEMENTS
In his seventh issue, Nunez argues that the trial court committed reversible error
when it allowed the State to make allegedly improper closing arguments during both the
guilt-innocence and punishment phases of the trial.
A. Standard of Review and Applicable Law
27
“Proper jury argument includes four areas: (1) summation of the evidence
presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the
opposing counsel’s argument, or (4) a plea for law enforcement.” Jackson v. State, 17
S.W.3d 664, 674 (Tex. Crim. App. 2000). The State may properly comment on a
defendant’s failure to produce evidence, as long as the remarks do not fault the defendant
for failing to testify. See id.; Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995);
Orellana v. State, 381 S.W.3d 645, 656 (Tex. App.—San Antonio 2012, pet. ref’d)
(observing that it does not inappropriately shift the burden of proof when the State
comments on the defendant’s failure to present favorable evidence).
Even when the State makes improper arguments, the error is only reversible if the
argument is “extreme or manifestly improper.” See Brown v. State, 270 S.W.3d 564, 570
(Tex. Crim. App. 2008). A defendant fails to preserve error regarding improper jury
argument if the defendant fails to object to the prosecutor’s arguments. Threadgill v.
State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004) (citing Cockrell v. State, 933 S.W.2d
73, 89 (Tex. Crim. App. 1996) (en banc)). “Absent an objection, a defendant waives error
unless the error is fundamental—that is, the error creates egregious harm. Egregious
harm is such harm that a defendant has not had a fair and impartial trial.” See Ganther
v. State, 187 S.W.3d 641, 650 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (internal
citations omitted).
B. Analysis
1. First Statement
Nunez first complains of the State’s comment during closing argument in the guilt-
innocence phase, which Nunez believes attempted to inappropriately shift the burden.
28
The State said, “[t]he defendant, when he took the stand, provided no evidence to support
his claim,” referring to Nunez’s defensive claim that the accusations were fabricated
because S.C. was jealous. This comment did not fault Nunez for exercising his right to
not testify; to the contrary, the State properly highlighted the fact that Nunez took the
stand and yet failed to produce evidence of S.C.’s alleged jealousy. This reference to
Nunez’s failure to produce witnesses or evidence was not improper. See Orellana, 381
S.W.3d at 656.
2. Second Statement
Next, Nunez argues that the State actively negated an element of the offense of
indecency with a child when the State said, “[a]nd the defense attorney is like, ‘Why would
he get any enjoyment?’ It’s not the enjoyment of having the sex. It’s the enjoyment of
controlling a fourth grader, of controlling a [sic] touching a third grader.” Namely, Nunez
contends that this statement negated the fact that he committed the offense with the
specific intent to gratify his sexual desire. Nunez did not object to this statement, and so
Nunez waived any possible error related to this statement unless it caused Nunez to suffer
egregious harm. See Ganther, 187 S.W.3d at 650.
However, as we mentioned in our legal sufficiency discussion, the jury could easily
infer the elements of indecency with a child based on Nunez’s conduct, including that he
touched her with the intent to arouse or gratify his sexual desires, notwithstanding the
State’s comments during closing argument. See Connell, 233 S.W.3d at 467. This
statement by the State did not egregiously harm Nunez. See Ganther, 187 S.W.3d at
650. Therefore, Nunez has waived any error related to this statement. See id.
3. Third Statement
29
Lastly, Nunez asserts that the State improperly referenced Nunez’s failure to
testify. Even though Nunez testified during the guilt-innocent phase, he did not testify
during the punishment phase. The State then told the jury, “This man laughed. He
doesn’t mean anything. He has taken zero responsibility. He has shown zero remorse
for anything that he did.” Nunez did not object to this statement. Therefore, Nunez has
not preserved error and has waived any error on this issue unless this statement caused
egregious harm. See Threadgill, 146 S.W.3d at 667; Ganther, 187 S.W.3d at 650.
Saying the defendant “has not taken responsibility for his crime” during the closing
argument of the punishment phase of trial can be a “permissible summation of the
evidence” concerning the defendant’s alibi testimony. Randolph v. State, 353 S.W.3d
887, 895 (Tex. Crim. App. 2011). In other words, saying the defendant has not taken
responsibility is not necessarily a reference to the defendant’s failure to testify, and thus
it is not per se improper for the State to make this argument. See id.
On the other hand, it can be improper for the State to reference the defendant’s
current lack of remorse because it “highlight[s] for the jury the appellant’s failure to take
the stand and claim present remorse.” See Snowden v. State, 353 S.W.3d 815, 824 (Tex.
Crim. App. 2011). However, like in Snowden, the State’s comments about Nunez’s lack
of remorse “did not move the jury from a state of non-persuasion to a state of persuasion
on any material issue in the case.” See id. at 825. The State’s comment about his lack
of remorse was isolated and never repeated or emphasized. The third complained-of
statement did not egregiously harm Nunez; accordingly, Nunez has waived any error.
See Threadgill, 146 S.W.3d at 667; Ganther, 187 S.W.3d at 650.
4. Summary
30
We conclude that Nunez waived his complaints as to statements two and three
because Nunez did not object to the trial court and those statements did not cause him
egregious harm. See Threadgill, 146 S.W.3d at 667; Ganther, 187 S.W.3d at 650. And
the first complained-of comment was not improper. See Jackson v. State, 17 S.W.3d
664, 674. Furthermore, none of the State’s arguments were “extreme or manifestly
improper.” Brown, 270 S.W.3d at 570. We overrule Nunez’s seventh issue.
IX. JURY INSTRUCTIONS
In his eighth and final issue, Nunez argues that the trial court committed reversible
error by failing to give the jury proper instructions for a specific intent offense and the
necessity of returning a unanimous verdict.
A. Standard of Review and Applicable Law
Unobjected-to charge error requires reversal only if it resulted in “egregious harm.”
Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008). “Harm is egregious if it
deprives the appellant of a fair and impartial trial.” Id.; see Allen v. State, 253 S.W.3d
260, 264 (Tex. Crim. App. 2008) (“[J]ury charge error is egregiously harmful if it affects
the very basis of the case, deprives the defendant of a valuable right, or vitally affects a
defensive theory.”).
Applying the egregious harm test requires considering (1) the jury charge, (2) the
state of the evidence, (3) the parties’ arguments, and (4) all other relevant information in
the record. See Allen v. State, 253 S.W.3d at 264. “If the charge error caused the
jury . . . to render a less-than-unanimous verdict on an issue on which unanimity is
required, the charge error is egregiously harmful.” Swearingen v. State, 270 S.W.3d 804,
812 (Tex. Crim. App. 2008).
31
B. Analysis
Nunez failed to object to the alleged jury charge error; therefore, Nunez must show
that any alleged error caused him egregious harm. See Neal, 256 S.W.3d at 278. We
conclude that Nunez was not egregiously harmed.
Nunez first complains that the jury charge failed to inform the jury that the mental
states of “intentionally” and “knowingly” only apply to count one, not count two; in other
words, on count one, the State needed to show that Nunez acted knowingly or
intentionally, whereas on count two, the State needed to show that Nunez acted with the
specific intent to arouse or gratify his sexual desire, not that he acted knowingly or
intentionally. See TEX. PEN. CODE ANN. §§ 22.021(a)(2)(B), 21.11(a)(1). Nunez relies on
a previous decision from our court for this proposition. See Rodriguez v. State, 24 S.W.3d
499, 502 (Tex. App.—Corpus Christi 2000, pet. ref’d). In Rodriguez, the jury charge
instructed the jury to find the defendant guilty if it found beyond a reasonable doubt that
the defendant had acted “with intent to arouse or gratify the sexual desire of said
defendant, intentionally or knowingly.” Id. We found that this was an error because
including knowingly or intentionally “could have allowed the jury to find him guilty of
indecency with a child without the specific intent to arouse or gratify his sexual desire.”
Id. Like the present case, the defendant in Rodriguez did not object and so we performed
an egregious error analysis. Ultimately, we concluded:
The victim testified that while alone with appellant, he touched her on her
breast and told her to kiss him. This evidence is plainly sufficient to
establish the requisite intent. Additionally, there was no evidence of
circumstances that would have led the jury to find that appellant had not
acted with the specific intent necessary to complete the crime. Appellant
therefore has not demonstrated that the error in the jury charge caused him
egregious harm.
32
Id. at 503. We come to the same conclusion in the current case. A.G. testified that Nunez
touched her breast and vagina under circumstances that were plainly sufficient to
establish the requisite intent. See id. Therefore, Nunez has not demonstrated that any
error in the jury charge caused him egregious harm. See Neal, 256 S.W.3d at 278.
Nunez also complains that jury charge error occurred because there was no
mention of unanimity in the application paragraph as to which incident the jury agreed
occurred to convict Nunez on the indecency with a child offense. See Cosio v. State, 353
S.W.3d 766, 771 (Tex. Crim. App. 2011) (“Unanimity means that the jury must agree upon
a single and discrete incident that would constitute the commission of the offense
alleged.”). The State also never called attention to the fact that the jury needed to
unanimously agree on a specific incident. Nunez argues this constituted egregious error.
In Cosio, the case relied on by Nunez, the Texas Court of Criminal Appeals
concluded that there was an error because the jury charge allowed for a non-unanimous
verdict. See id. at 777. However, the Court, in conducting its egregious harm analysis,
observed:
neither of the parties nor the trial judge 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. This factor therefore does not
weigh in favor of finding egregious harm.
Finally, [the complainant’s] testimony detailed each of the four incidents and
the various separate instances of criminal conduct involved in each incident.
Her testimony was not impeached. Cosio’s defense was that he did not
commit any of the offenses and that there was reasonable doubt as to each
of the four incidents because [the complainant] was not credible and the
practical circumstances surrounding the incidents of criminal conduct did
not corroborate [the complainant’s] testimony. His defense was essentially
of the same character and strength across the board. The jury was not
persuaded that he did not commit the offenses or that there was any
reasonable doubt. Had the jury believed otherwise, they would have
acquitted Cosio on all counts. On this record, therefore, it is logical to
33
suppose that the jury unanimously agreed that Cosio committed all of the
separate instances of criminal conduct during each of the four incidents. It
is thus highly likely that the jury’s verdicts . . . were, in fact, unanimous.
Accordingly, actual harm has not been shown, and we cannot say that
Cosio was denied a fair and impartial trial.
Id. We find the analysis in Cosio is equally applicable here. Nothing in the record before
us indicates that the trial court or the jury charge instructed the jury that it did not have to
be unanimous. A.G. gave her testimony regarding the alleged incidents of sexual assault.
Nunez generally argued that he did not commit any of the alleged offenses; thus, his
defense was of the same nature and strength across the board. However, the jury
rejected this argument and found Nunez guilty, suggesting that they unanimously
believed that he committed all of the separate instances of criminal conduct because
otherwise they would have acquitted Nunez. See id. Just as it was in Cosio, it is logical
to suppose that the jury’s verdict in Nunez’s case was unanimous. See id. Therefore,
Nunez has not demonstrated actual harm, and we cannot say that Nunez was denied a
fair and impartial trial. See id. (“An egregious harm determination must be based on a
finding of actual harm rather than theoretical harm.”); Swearingen, 270 S.W.3d at 812;
Hutch, 922 S.W.2d at 171. We overrule Nunez’s eighth issue.
X. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
25th day of April, 2019.
34