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Click here for the full text of this decision FACTS:Gilbert De Los Santos was charged in seven separate indictments with several counts of aggravated sexual assault of his two stepdaughters. The seven cases were jointly tried before a jury. Both of the child complainants, who were 11 years old and 9 years old at the time, testified at trial. Of the five indictments on which De Los Santos was found guilty, two indictments alleged only one count of aggravated sexual assault and the other three indictments alleged two counts of aggravated sexual assault. The application paragraphs of the three two-count indictments submitted in the charge on the two-count indictments instructed the jury to find De Los Santos guilty of aggravated sexual assault if they found beyond a reasonable doubt that he had intentionally or knowingly caused his sexual organ to penetrate the anus of the child (count one), or if they found beyond a reasonable doubt that he had intentionally or knowingly caused his sexual organ to penetrate the mouth of the child (count two). Each charge contained a general instruction informing the jury that their verdict must be by unanimous vote but there was no separate unanimity instruction in the application paragraph. In each case, the jury foreperson signed a general verdict form finding De Los Santos guilty of aggravated sexual assault without specifying the particular count or counts on which he was convicted. The jury convicted De Los Santos in five of the seven cases and assessed punishment at 90 years imprisonment and a $10,000 fine for each crime. In imposing the sentences, the trial court ordered that one 90-year sentence would run consecutive to the other concurrent 90-year sentences, for a cumulative sentence of 180 years. On appeal, De Los Santos asserted that he received ineffective assistance of counsel, the trial court erred in submitting the jury charge with a general verdict form and the trial court also erred in admitting the testimony of the child complainants. HOLDING:Affirmed. In his first issue, De Los Santos argued that his attorney’s failure to object and request separate trials amounted to ineffective assistance because there was no strategic reason for proceeding with a joint trial since the court could still cumulate his sentences, as it ultimately did. But the court dismissed this point of error, because De Los Santos neglected to raise it in his motion for a new trial. In his second issue, De Los Santos asserted the trial court committed charge error by submitting a general verdict form to the jury, with no instructions that the jury must be unanimous with respect to the different counts within the different indictments. Essentially, De Los Santos’ complaint on appeal was that the jury could have been less than unanimous on the two-count indictments with some jurors finding he penetrated the anus of the child and other jurors finding he penetrated the mouth of the child. The court held that the trial court’s disjunctive submission of the separate offenses without an accompanying instruction that each juror must agree on which particular offense was committed was error. Because De Los Santos failed to object at trial, the court stated it would not reverse unless the record showed that De Los Santos suffered egregious harm. Egregious harm, the court stated, includes errors that affect the very basis of the case, deprive the defendant of a valuable right or vitally affect a defensive theory. Based on the jury charge as a whole and the entire record in this case, the court concluded that De Los Santos was not denied a fair and impartial trial and thus did not suffer egregious harm in the three cases with two-count indictments. The jury, the court stated, was never told that they could return a “mix and match” verdict, or that they need not reach a unanimous verdict. The court noted that the jury charge, when read as a whole, informed the jurors of their duty to reach a unanimous verdict on one application paragraph or the other or both. The charge error did not affect the very foundation of the cases, deny De Los Santos a valuable right or significantly affect his defensive theory that he was not the person who committed the acts of sexual abuse. The court also held that the trial court did not abuse its discretion in finding the children competent to testify against De Los Santos. OPINION:Speedlin, J.; Marion, Speedlin and Simmons, J.J.

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