Okay. I know I just saw a case that set forth jury charge language on this issue. Anyone know what it was?

[This message was edited by Gordon LeMaire on 12-16-11 at .]

Is it recent? Can you provide a little more context? Maybe the crime?

I thought it was a recent case and it dealt with sexual assault (I don't think it was CSA)

Found it. Was in The Texas Prosecutor. Cosio v. State

So here is the question that prompted the initial post:

Defendant assaults his wife:

language from indictment:

did then and there intentionally, knowingly, or recklessly cause bodily injury to (victim) by pushing with hands, pushing into the ground with hands, striking with arm or with hands, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm, during the commission of said assault,

Is there an unanimity issue?

You have a single offense-causing bodily injury. The alternative methods of committing the offense are simply manner and means, so unanamity is not an issue.

Thanks John, that's were I was heading, but I needed a sanity check.

I was the appellate prosecutor who handled the Cosio case, which the 13th Court of Appeals affirmed on remand on December 21, 2011, so I thought I would add a few thoughts.

The issue I had wanted the C.C.A. to clarify in Cosio was the distnction between the concepts of an election among counts and an election amoung acts. In particular, I sought to have the Court clarify whether the term "the same specific criminal act" which Judge Cochran used in Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.Ap. 2005) referred to the same specific act constituting the offense that the defendant had committed or the same particular instance on which said conduct had occurred.

Therefore, I was somewaht disappointed when the C.C.A. did not clearly address those issues and relied on Ngo, dealing with different statuory forms of committing credit card abuse, and Francis v. State, 36 S.W.3d 121 (Tex.Crim.App. 2000), dealing with different statutory forms of committing the offense of indecency with a child, to conclude that the 13th Court of Appeals had correctly determined that the jury charges in Cosio allowed for the possibility that the jury had rendered non-unanimous verdicts. After all, both of those cases deal with alternative forms of committing the offense involved and not an issue of election among multiple acts constituting the offense.

However, Cosio did clearly state that the trial court is required to give an instruction which tells the jury that it must agree on the specific incident of crimnal conduct which the defendant had committed while avoiding commenting on any specific evidence and still allowing the jury to return a general verdict. Because I am not sure how many prosecutors or judges are aware of this requirement, I an pleased that the Texas Prosecutor has recently publlished an article about this subject authored by Emily Johnson-Liu.

I should, however, point out that I disagree with Ms. Johnson-Liu's comments about the Court of Appeals' finding that the evidence on one indecency with a child count was insufficient.
As they which ultimately submitted in the jury charge after the State had elected among the offenses alleged in the indictment, Counts Three and Four both alleged touching parts of the victim's genitals. The evidence as to one of the incidents which fit that allegation was the girl's testimony that Cosio had touched "mostly my whole body, like mostly everywhere". The Court of Appeals held said language too imprecise to support a reasonalbe inference that the defendant had touched the girl's genitals.

Frankly, I decided not to challenge that holding both because I felt it was arguably correct and becasue I wanted to pursue a "clean" case involving the central unanimity issue on rehearing, reconsideration en banc, and ultimately on P.D.R. without deflecting attention to a side issue.

I should point out that the Cosio case is also signficant in terms of the hamr analysis conducted by the Court of Criminal Appeals. In particular, it notes that it is very unlikely that the defendant had met his burden to show actual harm involving the jury reaching a non-unanimous verdict in a typical scenario where the defensive theory is that none of the conduct mentioned by the victim had occurred.

Finally, I would like to mention the fact that retired State Prosecuting Attorney Jeff van Horn and current State Prosecuting Attorney Lisa McMinn were extremely helpful when I sought their thoughts about the Cosio case. In fact, they told me that they were not sure of the outcome as to the merits of the Cosio case, but were confident that the Court of Crimnal Appeals would find that the Court of Appeals had erred in its evaluation of the harm issue. Thus, their predictions as to the outcome turned out to be quite accurate.