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Click here for the full text of this decision FACTS:The appellant lived with his parents, Sunnye and Hollis Hisey, in Galveston. Appellant grew up in Galveston and previously resided in Florida, but returned to the island around 1995 to care for his elderly parents, who were suffering from declining health. On Sept. 1, 2000, responding to inquiries from concerned family and friends regarding the condition and whereabouts of the elderly couple, Investigator Bruce Balchunas and Detective Perry Larvin of the criminal investigation division of the Galveston county sheriff’s office met appellant at the Hisey residence. Appellant signed a consent form to allow the officers to search the residence. In a bedroom, the detectives discovered the partially decomposed bodies of Sunnye and Hollis Hisey. According to the Galveston Medical Examiner, both had been strangled to death. Following his arrest, appellant reached for a firearm in an attempt to kill himself, but was restrained by the police officers. While in custody, in a videotaped statement to police officers, appellant claimed that his parents died of natural causes. HOLDING:Reversed and remanded. As in Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000), the jury charge in this case allowed the jury to convict appellant of murder whether some members of the jury believed appellant was guilty of murdering both his parents, or whether some jurors believed he murdered solely his mother or solely his father. The murder of Sunnye Hisey is one offense, and the murder of Hollis Hisey is a different offense. Yet, the charge allowed for conviction of murder if appellant committed either offense and thereby allowed for the possibility of a non-unanimous jury verdict of murder. It is impossible for the court to ascertain for which offense the jury convicted appellant. Although it is entirely possible that some of the jurors may have believed appellant was guilty of the murder of both his parents, it is also possible that appellant was convicted of murder by six jurors who believed he was guilty of murdering only his mother and six jurors who believed he was guilty of murdering only his father. As written, the charge allowed for a non-unanimous jury verdict, in violation of the Texas Constitution’s and Texas Code of Criminal Procedure’s requirements of a unanimous jury verdict in felony cases. The court concludes that the trial court erred by not requiring the jury to return a unanimous verdict as to one of the three theories of committing the lesser-included offense of murder. The appellant did not object to the jury charge; thus, reversal is required only if the error was so harmful as to deprive him of a fair and impartial trial. Nothing in the record suggests that the jury did not understand or follow the court’s charge, and the court presumes that it is possible that appellant was convicted by a jury that may have been split concerning whether he killed either Sunnye or Hollis. There were two contested issues in the trial. First, the parties contested whether the deaths occurred during the same scheme or course of conduct. Second, the parties contested whether appellant caused the deaths of both Sunnye and Hollis. From the medical evidence, it appears possible that one or more of the jurors believed appellant killed Sunnye only, and one or more of the jurors believed he killed Hollis only, and reached a verdict of murder under the erroneous charge. The court rejects the state’s assertion that appellant has suffered no harm because the overwhelming weight of the evidence established he was guilty of killing both his mother and father. Given the time period of at least eight months between the deaths of appellant’s parents, the conflicting medical evidence between the state’s and appellant’s experts, the conflicting evidence establishing the reasons for the seclusion of the deceased parents in the bedroom, and the impossibility of a determination of which murder the appellant was convicted of committing, the court concludes that appellant suffered egregious harm by the court’s charge, which allowed for conviction of murder based on a non-unanimous jury verdict. The court cannot make the necessary credibility determinations from the cold record. After examining the entire jury charge, the jury verdict, the disputed and undisputed evidence, the weight of the probative issues, and the arguments of counsel, the court concludes that the erroneous disjunctive charge deprived the appellant of a fair and impartial trial. OPINION:Alcala, J.; Radack, C.J., Keyes and Alcala, JJ.

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