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Criminal Law No. 14-02-00573-CR, 6/12/2003. Click here for the full text of this decision FACTS: The appellant entered a plea of not guilty to the offense of assault on a public servant. He was convicted and the jury assessed punishment at 40 years’ confinement. The appellant contends the trial court erred in overruling appellant’s objection to the jury charge and allowing a conviction on less than a unanimous verdict. HOLDING: Reversed and remanded. The appellant contends the trial court committed egregious error in allowing a conviction on less than a unanimous verdict and that the trial court erred in overruling appellant’s objection to paragraph five in the court’s charge. The appellant, a prison inmate, was charged by indictment with assaulting Jesse Rodriguez and Charles Nance, who were correctional officers in lawful discharge of their official duties. The court’s charge, however, instructed the jury to find appellant guilty if they found he assaulted either Jesse Rodriguez or Charles Nance. Appellant objected to the use of the disjunctive “or” in the court’s charge because the indictment alleged the offense in the conjunctive. The trial court overruled appellant’s objection. In its brief, the state concedes the jury charge is erroneous, and the court agrees. The charge given in this case created the possibility of a non-unanimous jury verdict. The assault on Jesse Rodriguez was a different offense from the assault on Charles Nance. The two assaults should not have been charged in the disjunctive. Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000). The trial court’s charge allowed the possibility of six jurors convicting appellant of the assault on Jesse Rodriguez and six jurors convicting appellant of the assault on Charles Nance. The appellant was entitled to a unanimous jury verdict. Therefore, the trial court erred in charging appellant in the disjunctive. The court determines whether sufficient harm resulted from the error to require reversal. Abnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994). Error in the charge, if timely objected to in the trial court, requires reversal if the error is calculated to injure the rights of the defendant. Texas Code of Criminal Procedure article 36.19. In making this determination, the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). Unanimous verdicts are required in felony criminal cases. Texas Constitution article V, �13; Texas Code of Criminal Procedure art. 36.29; Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991). The charge in this case allowed the jury to return a non-unanimous verdict. Because the jury was capable of returning a less than unanimous verdict, the court finds the charge error was harmful. OPINION: Yates, J.; Yates, Hudson and Frost, JJ.

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