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Click here for the full text of this decision FACTS:Authorities indicted Craig Jonathan Warner for acts against two girls (his stepdaughter and her cousin) occurring over the course of a weekend. The two indictments were identical, and each contained two counts. The state later abandoned the second count in each indictment. Count One charged Warner with aggravated sexual assault in three paragraphs, alleging that the offenses occurred on or about March 23, 2003. Warner pleaded not guilty to the two offenses. The two causes were tried to a jury in a single trial. The jury charge set out the law, in pertinent part, as follows: “Our law provides that a person commits the offense of aggravated sexual assault of a child if he intentionally or knowingly causes penetration of the female sexual organ by any means or causes the anus of a child under 14 years of age to contact the sexual organ of another person; or causes the sexual organ of a child under 14 years of age to contact the mouth of another person, including the actor and the child is not the spouse of the person committing the offense.” The jury charge also included the following application paragraph for the first victim: “Now if you find from the evidence beyond a reasonable doubt that on or about the 23rd day of March, 2003 in Lampasas County, Texas the defendant, CRAIG JONATHAN WARNER, did then and there intentionally or knowingly cause the penetration of the female sexual organ of [victim 1], a child younger than 14 years of age, who was not the spouse of said defendant by inserting defendant’s finger or cause the sexual organ of [victim 1] to contact the defendant’s mouth, or did then and there intentionally or knowingly cause the anus of [victim 1] who was not the spouse of the defendant to contact the sexual organ of the defendant, then you will find the defendant guilty of aggravated sexual assault and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of aggravated sexual assault and say by your verdict”Not Guilty’ of said offense.” The second application paragraph was identical, except for the name of the victim and the following language: “a child younger than 14 years of age, who was not the spouse of said defendant by the defendant’s finger or cause the female sexual organ of [victim 2] to contact the defendant’s mouth . . . .” Warner did not object to the charge. The jury found Warner guilty of the two offenses. On appeal, Warner claimed that error in the jury charge precluded a unanimous jury verdict required by the Texas Constitution and state statutes. He argued that the instructions allowed the jury to return a general verdict of guilty without all 12 jurors unanimously agreeing that Warner committed any one of the three offenses submitted in the disjunctive. The 3rd Court of Appeals found error in the jury charge and set out the standard of harm, which is analyzed under the 1985 CCA opinion Almanza v. State. Because Warner did not object to the charge, the CCA stated that the error would not result in reversal “unless it was so egregious and created such harm that appellant was denied a fair trial.” Errors that result in egregious harm, the CCA stated, are those that affect the very basis of the case, deprive the defendant of a valuable right or vitally affect a defensive theory. After an examination of the record, the 3rd Court concluded that Warner was not egregiously harmed by the error. The 3rd Court stated: “Viewing the indictment, evidence, and charge in its entirety, it is evident that the jury simply did not believe the defense case.” Before the CCA, Warner presented two grounds for review: 1. the 3rd Court incorrectly placed a burden on Warner to show harm; and 2. the 3rd Court failed to address the main assertions that supported Warner’s claim of egregious harm. HOLDING:Vacated and remanded. To begin, the CCA noted that no burden exists on either party in an Almanza harm analysis. Because the 3rd Court placed a burden of proof on Warner, the CCA remanded the case to the 3rd Court for a review of the record, giving consideration to the fact that neither party has a burden to show harm. Next, Warned argued that the 3rd Court did not consider five specific points that would have supported a finding of egregious harm. First, Warner argued that, in the two application paragraphs, two of the three listed statutory offenses failed to track the full language of the indictment and the statute, thus authorizing a conviction on less than all the required elements of the offenses. But the CCA stated: “This language, however, was not the source of the jury charge error. In fact, the jury charge is incorrect because it does not make clear that the jury had to find unanimously on at least one statutory offense. Therefore nothing compelled the Court of Appeals to address this issue.” Second, Warner argued that the jury never heard or viewed the videotaped interviews of the victims, which he claimed provided the only evidence supporting the sole statutory offense that was correctly worded in the application paragraph. But the CCA found that in fact the jury watched the videotapes in their entirety in the courtroom. Third, Warner argued that “a correct jury charge and the requirement that the state elect upon request are two of the safeguards against a non-unanimous jury verdict.” But the CCA found “no explanation why this argument should have contributed to a determination of egregious harm.” Fourth, Warner claimed that the prosecutor, in closing, argued that the jury could be a plurality as to the three statutory offenses, that is, that the jurors did not have to be unanimous as to any one offense. But the CCA did not read the prosecutor’s argument as authorizing fewer than all jurors to convict on at least one of the three listed statutory offenses. The prosecutor, the CCA stated, instead told the jurors they might find the evidence supported guilt on either one offense, two offenses or all three offenses. Finally, Warner pointed to factors in the record as a whole that would have supported his claim he suffered egregious harm. These allegations included: “the failure of trial counsel to ask the State to elect, the fact that some testimony suggested some of the criminal conduct might have occurred on different days and possibly in another county, and the fact that the videotapes should not have been admissible even though no objection was made.” The CCA stated that it failed to see how the factors showed egregious harm. OPINION:Womack, J., delivered the opinion of the court, in which Meyers, Price, Johnson, Keasler, Hervey, Holcomb and Cochran JJ., joined. DISSENT:Keller, P.J., filed a dissenting opinion. “The Court overrules five different specific challenges to the court of appeals’s harm analysis but remands the case because the court of appeals erroneously stated that appellant had a burden to show harm. But despite this mistake, which was based upon our own language in our own opinion, the court of appeals conducted what was essentially a correct harm analysis. The court of appeals’s decision does not appear to depend in any way upon whether appellant had a burden to show harm.”

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