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Click here for the full text of this decision FACTS:The cause has been remanded a second time by the Texas Court of Criminal Appeals for reconsideration of the issue of harm arising from the erroneous overruling of appellant’s pretrial motion to quash the indictment based on the lack of notice of the nature and cause of the accusation against him as constitutionally and statutorily required. “The Court of Criminal Appeals has apparently limited our reconsideration to a special type of statutory harmless error analysis for charging instruments under article 21.19 of the Code of Criminal Procedure as interpreted in Adams v. State, 707 S.W.2d 900 (Tex. Crim. App. 1986).” The defect complained of in the instant one-count and one-paragraph indictment consisted of the failure to specify and give notice of the complainant’s alleged “rights, privileges, powers, and immunities” and the terms and conditions thereof that appellant had made subject to the complainant’s submission to 10 different offenses of sexual harassment. HOLDING:Reversed and remanded. “Adams has cast an additional burden upon a defendant to show from the”context of the case’ how the defendant was harmed in preparing and presenting his defense despite the unremedied error in the charging instrument, leaving the state as the beneficiary of the trial court’s error in overruling the challenge to the charging instrument. Adams and its progeny have formed a harmless error roadblock to the exercise of an accused’s constitutional and statutory rights. We have concluded, however, that appellant has met the Adams test.” The trial court submitted a jury charge authorizing a conviction upon one dispositive finding among the 10 separate acts as set forth in the indictment. In effect, the trial court instructed the jury that a conviction for sexual harassment official oppression could be based on one unit of prosecution such as appellant telling the complainant to “put on lipstick.” The complainant testified that the alleged acts occurred at different times over a period from Aug. 1, 1994, to Feb. 15, 1995, except October and November 1994 when none occurred. Under the court’s charge, any one of the 10 acts occurring at any time would alone justify the conviction if all other elements were also proven beyond a reasonable doubt. There is no element of a course of continuing conduct required in the offense alleged. Any one of the 10 acts if supported by the evidence and applicable law could alone sustain appellant’s conviction if there was a unanimous jury verdict on one act. The prosecutor in his jury argument at the guilt/innocence stage of the trial told the jurors that two of them could believe appellant committed one of the acts alleged, three members could believe appellant committed only another act alleged and the balance could believe a third act was committed by appellant. The prosecutor then added: “As long as you all believe in some manner, as we have alleged in the indictment, that he committed sexual harassment that is okay, even though you may not jive, or you may not be unanimous on the specifics, so long as you all believe it in some manner, that is sufficient for your unanimous verdict.” There were no cautionary instructions in the jury charge to avoid a nonunanimous verdict. The instant case is similar to Clear v. State, 76 S.W.3d 622 (Tex. App. – Corpus Christi 2002, no pet.), where the trial court submitted three separate offenses of aggravated sexual assault disjunctively and accepted a general verdict after the prosecutor’s jury argument about the jury being able to legally split their verdict. “There, as here, despite the absence of an objection, the conclusion must be that egregious harm has been shown.” OPINION:Onion, J.; Stone, Speedlin and (Onion, JJ.

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