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Click here for the full text of this decision FACTS:Authorities charged Barry Louis Pizzo with, among other things, indecency with a child by contact in violation of Texas Penal Code �21.11(a)(1). Counts two and three of the indictment alleged that Pizz “on or about the 21st day of June, 2001 . . . did then and there, with the intent to arouse and gratify the sexual desire of said Defendant, intentionally and knowingly engage in sexual contact by touching the GENITALS AND BREASTS, of [A.S.], a child younger than 17 years of age and not the spouse of the Defendant.” The evidence presented at trial showed that on two separate occasions � one in A.S.’s house and one in Pizzo’s trailer � Pizzo touched both the breasts and genitals of A.S. At the charge conference, asserting his right to a unanimous jury verdict, Pizzo objected to the proposed charge because the application paragraphs as to counts two and three set out the form of sexual contact in the disjunctive. Pizzo requested that they be charged in the conjunctive, “because otherwise, you don’t know if six jurors decided”genitals’ and six decided”breasts.’” The trial judge overruled the objection and submitted the charge to the jury. As to count two, the jury found Pizzo guilty and sentenced him to nine years’ imprisonment and assessed a $7,000 fine. And, as to count three, the jury found Pizzo not guilty. Pizzo appealed his conviction under count two and, in his sole point of error, he claimed that the trial judge erred “by overruling his objection to the court’s charge requesting that the terms”breast or genitals’ be charged in the conjunctive rather than in the disjunctive.” In a memorandum opinion affirming the judgment of the trial court, the 13th Court of Appeals held that Pizzo was not denied his right to a unanimous verdict because the trial judge “properly charged both means of sexual contact disjunctively.” In short, the court of appeals concluded that the touching of the breasts and genitals, which occurred during the same encounter, were not separate offenses but were only different means of committing the offense of indecency with a child by contact. Pizzo filed a petition for discretionary review. The CCA granted review to determine whether the court of appeals erred by failing to apply the CCA’s 2000 opinion in Francis v. State, where the CCA held that it was error to charge in the conjunctive when the breast-touching and genital-touching incidents were two separate indecency by contact offenses because they occurred on different dates. Citing Francis, Pizzo’s ground for review asked: Did the court of appeals err “in holding that the trial court’s submission of a disjunctive in the court’s charge concerning two different offenses, both constituting the offense of indecency with a child, was not a denial of [his] right to a unanimous jury verdict?” HOLDING:Reversed and remanded. The CCA concluded that the 13th Court erred, because the jury instruction improperly charged two separate offenses in the disjunctive and therefore permitted a conviction on less than a unanimous verdict. Under the Texas Constitution, jury unanimity is required in felony cases, and under Texas statutes, unanimity is required in all criminal cases. Unanimity ensures that all jurors reach a consensus “on the same act for a conviction.” Jury unanimity, the CCA stated, is required on the essential elements of the offense but is generally not required on the alternate modes or means of commission. Different modes of commission may be presented in a jury instruction in the disjunctive when the charging instrument, in a single count, alleged the different means in the conjunctive. The Legislature has criminalized three types of acts, the CCA stated. A person can engage in sexual contact by touching the anus, by touching the breast or by touching the genitals with the requisite intent. Each one of these acts, the CCA stated, represents a different offense. Any alternative mode of commission relates to how the touching was effectuated, not where the touching occurred. Therefore, the CCA found that each act constituted a different criminal offense and juror unanimity was required as to the commission of any one act. Because the indictment charged Pizzo with touching the breasts and genitals of A.S. in the conjunctive, the CCA found that the charged possibly violated Pizzo’s right to a unanimous verdict. It is possible, the CCA stated, that six jurors convicted Pizzo for touching the breasts of A.S. while six others convicted Pizzo for touching the genitals of A.S. OPINION:Keasler, J., delivered the opinion for a unanimous court. CONCURRENCE:Price, J., filed a concurring opinion in which Johnson and Cochran, JJ., joined. “I agree with the majority that indecency with a child is a conduct-oriented offense. But I am less sure that the statutory definition of”sexual contact’ in Section 21.01(2) of the Penal Code, as it read prior to amendment in 2001, carves out three different and distinct conduct-oriented offenses.”

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