Carter v. State

Full title: Bruce CARTER, Appellant v. The STATE of Texas, Appellee

Court: Fourth Court of Appeals San Antonio, Texas

Date published: May 4, 2016

No. 04-15-00319-CR (Tex. App. May. 4, 2016)

Opinion

No. 04-15-00319-CR

05-04-2016

Bruce CARTER, Appellant v. The STATE of Texas, Appellee

Opinion by: Marialyn Barnard, Justice

MEMORANDUM OPINION

From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR3505
Honorable Ray Olivarri, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Jason Pulliam, Justice AFFIRMED

A jury convicted appellant Bruce Carter of one count of continuous sexual abuse of a child and two counts of indecency with a child by contact. The trial court sentenced Carter to confinement for life on the continuous sexual abuse charge and twenty-five years' confinement on each of the two indecency charges; the sentences were ordered to run concurrently. On appeal, Carter raises a single point of error, contending the trial court erred in failing to provide proper jury instructions on unanimity. We affirm the trial court's judgment.

BACKGROUND

Carter was charged by indictment with three felony offenses stemming from the sexual abuse of his step-daughter, T.G. In Count I, the State charged Carter with continuous sexual abuse of a child, alleging Carter caused the penetration of T.G.'s anus and touched part of T.G.'s genitals from on or about October 1, 2007, through January 26, 2010. In Count II, the State charged Carter with indecency with a child by contact, alleging Carter touched part of T.G.'s genitals on or about April 5, 2005. In Count III, the State again charged Carter with indecency with a child by contact, this time alleging he touched part of T.G.'s genitals on or about November 13, 2005. Carter pled not guilty and a jury was ultimately empaneled.

During the guilt phase of the trial, T.G. testified that prior to 2012, she lived with Carter, her step-father, and her two younger brothers and her younger sister. At the time she came to live with Carter, she stated she was nine or ten-years-old. T.G. testified about various instances of sexual abuse:

The Living Room Incident: T.G. stated that the first time Carter touched her genitals — her vagina — she was in the third grade. According to T.G., he took her from the bedroom she shared with her sister into the living room. Initially, he touched her over her clothing, but then removed her pants, touching her genitals through her underwear. T.G. testified she tried to pull up her pants, but Carter told her "to stop . . . to shut up." T.G. stated this was the only time Carter abused her in the living room.

The Incidents in T.G.'s Bedroom: T.G. testified the next time Carter touched her, he came to the bedroom she shared with her sister. According to T.G., she slept on the top bunk of their bunk beds. Carter would climb into bed with her and touch her. Sometimes he touched her genitals through her underwear, but other times he put his hand inside her underwear and touched her genitals.

The Incidents in Carter's Bedroom: T.G. testified that sometimes Carter would "pull" her off her bed and "force" her into his bedroom and lock the door. He would pull her onto his bed and take her pants off. Sometimes she was able to stop him by "screaming and hollering." At times, he would put her on the bed and try to get on top of her, preventing Carter from doing anything other than touching her.

The Bathroom Incidents: T.G. stated that one night, when she was in middle school — twelve or thirteen-years-old — Carter took her from her bed into the bathroom. T.G. testified that once they were in the bathroom, Carter pulled down her pants and underwear, sat on the toilet, and placed her on his lap. At that time, he put his penis into her anus. She screamed and cried, but he told her to shut up. According to T.G., this was the only time Carter put his penis inside her anus. However, there were other incidents in the bathroom. When she would take a bath, Carter would come into the bathroom and rub a towel between her legs.

T.G. testified the touching occurred "like every other day" for eight years. In December 2012, when T.G. was sixteen-years-old, she sent text messages to her older sister, L.M., who was over the age of eighteen, telling her Carter was a "rappist [sic]." T.G. told her sister she was going to run away. The sisters agreed L.M. would pick T.G. up at school the next day. L.M. took T.G. to her apartment where the sisters talked about the abuse. Eventually, the sisters went to police and gave statements. T.G. was examined by a sexual assault nurse examiner ("SANE"). The SANE testified T.G. told her Carter sexually abused her more than once and it had started when T.G. was nine or ten-years-old. T.G. told the SANE Carter put his penis in her anus and touched her with his hands "here," pointing to her genitals. T.G. said the last time Carter touched her was in February 2012. T.G. repeated these allegations to an investigator with Child Protective Services. T.G. testified she waited to come forward because she was afraid — afraid she and her younger siblings would be returned to foster care.

After the parties closed, the trial court presented the charge to the jury. As to Count I, the trial court instructed the jury that it was "not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed." The court advised, however, that to find Carter guilty, the jury had to unanimously agree that during a period of thirty or more days in duration, he committed two or more acts of sexual abuse. With regard to Counts II and III, the indecency with a child by contact offenses, the jurors were advised that to find Carter guilty, they had to find that on or about April 5, 2005, and November 13, 2005, he engaged in sexual contact with T.G. by touching part of her genitals. The trial court did not provide any instructions with regard to unanimity as to either Count II or Count III. The trial court's only other reference to unanimity was in the general portion of the charge that instructed the jurors that after they "reached a unanimous verdict," the foreman would so certify by filling out the forms attached to the charge and signing his or her name.

Carter did not object to the charge with regard to unanimity. After deliberating, the jury found Carter guilty of all three counts and recommended confinement for life on the continuous sexual abuse charge and twenty-five years' confinement on each of the two indecency charges. The trial court rendered a judgment of guilt, sentencing Carter in accordance with the jury's recommendation, but ordering the sentences to run concurrently. Thereafter, Carter perfected this appeal.

ANALYSIS

As previously stated, Carter raises a single point of error, contending the trial court erred in failing to provide proper jury instructions on unanimity. The State counters, arguing the jury was properly instructed, and alternatively, if the trial court erred with regard to instructing the jury on unanimity, the error was not egregious.

Standard of Review

When analyzing a jury charge issue on appeal, this court first determines if there was an error, and if so, whether the error caused sufficient harm to warrant a reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Ochoa v. State, 119 S.W.3d 825, 828 (Tex. App.—San Antonio 2003, no pet.). The amount of harm necessary to warrant a reversal depends on whether the appellant objected to the jury charge. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (opin. on reh'g)); Ngo, 175 S.W.3d at 743; Ochoa, 119 S.W.3d at 828. If the appellant objected to the complained of portion of the jury charge, then the record need only show he suffered some harm as a result of the error to obtain a reversal. Reeves, 420 S.W.3d at 816; Ngo, 175 S.W.3d at 743; Ochoa, 119 S.W.3d at 828. If, however, the appellant failed to object to the complained of portion of the charge, then he must show he suffered egregious harm to be entitled to a reversal. Reeves, 420 S.W.3d at 816; Ngo, 175 S.W.3d at 743; Ochoa, 119 S.W.3d at 828.

Applicable Law

Jury unanimity is required in all criminal cases. TEX. CONST. art. V, § 13; TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West Supp. 2015); Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). In Texas, the jury must "reach a unanimous verdict about the specific crime that the defendant committed." Cosio, 353 S.W.3d at 771. This means "the jury must agree upon a single and discrete incident that would constitute the commission of the offense alleged." Id. (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)) (emphasis added). The unanimity requirement ensures the jury agrees on the factual elements underlying the charged offense, not that it merely agrees that a statute was violated. Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000). With regard to this case specifically, "non-unanimity may occur when the State charges one offense and presents evidence that the defendant committed the charged offense on multiple but separate occasions." Cosio, 353 S.W.3d at 772. Each of the multiple incidents establishes a different offense or "unit of prosecution." Id. In this situation, it is the trial court's responsibility to ensure unanimity by instructing the jury in the charge that its verdict must be unanimous as to a single incident offense or unit of prosecution among those presented by the State. Id.

Application

Here, Carter challenges the absence of a unanimity instruction with regard to each offense. We first address the continuous sexual abuse of a child offense with regard to unanimity. We will then address the issue with respect to the indecency with a child by contact offenses. 1. Continuous Sexual Abuse of a Child

Under the plain language of section 21.02(b) of the Texas Penal Code, the offense of continuous sexual abuse of a child has five elements: (1) a person (2) who is seventeen or older (3) commits a series of two or more acts of sexual abuse (4) during a period of thirty or more days, and (5) each time the victim is younger than fourteen. TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2015). Under Article V, § 13, jurors, before they may convict under section 21.02(b), must agree unanimously on each of these five elements. See TEX. CONST. art. V, § 13; TEX. CODE CRIM. PROC. ANN. art. 36.29(a); Cosio, 353 S.W.3d at 771. However, section 21.02(d) specifically states that if a jury is the trier of fact, jurors are not required to agree unanimously on which specific acts of sexual abuse the defendant committed; rather, jurors must simply agree the defendant, during a period of thirty or more days, committed two or more acts of sexual abuse. TEX. PENAL CODE ANN. § 21.02(d). Numerous appellate courts, including this court, have reviewed this provision of the Penal Code and held the statute means exactly what it says — jurors need not agree unanimously on which specific acts of sexual abuse the defendant committed, reasoning those acts are merely the manner and means by which the "series" element was accomplished. E.g., Meraz v. State, 415 S.W.3d 502, 505 (Tex. App.—San Antonio 2013, pet. ref'd); McMillian v. State, 388 S.W.3d 866, 871-73 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Casey v. State, 349 S.W.3d 825, 829 (Tex. App.—El Paso 2011, pet. ref'd); Reckart v. State, 323 S.W.3d 588, 600-01 (Tex. App.—Corpus Christi 2010, pet. ref'd); Render v. State, 316 S.W.3d 846, 857-58 (Tex. App.—Dallas 2010, pet. ref'd). The courts, in interpreting the continuous sexual abuse statute, have held jurors are not required to unanimously agree on which specific acts the defendant committed because section 21.02 creates a single offense. E.g., Meraz, 415 S.W.3d at 505; Render, 316 S.W.3d at 857. As stated by this court, "[t]he continuous sexual abuse statute allows the State to seek 'one conviction for a "series" of acts of sexual abuse with evidence that, during the relevant time period, appellant committed two or more different acts that section 21.02 defines as means of committing a single criminal offense and not as two or more separate criminal offenses.'" Meraz, 415 S.W.3d at 505 (quoting Render, 316 S.W.3d at 857).

Accordingly, contrary to Carter's assertion, the trial court was not required to instruct jurors that they were required to unanimously agree on which specific acts of sexual abuse Carter committed. See TEX. PENAL CODE ANN. § 21.02(d); Meraz, 415 S.W.3d at 505; Render, 316 S.W.3d at 857. Rather, the trial court was required to advise jurors that in order to find Carter guilty of the offense of continuous sexual abuse of a child, they had to unanimously agree Carter committed a series of two or more acts of sexual abuse during a period of thirty or more days. See Meraz, 415 S.W.3d at 505; Render, 316 S.W.3d at 857. As noted above, the court's charge specifically instructed jurors that to find Carter guilty, they had to unanimously agree that during a period of thirty or more days in duration, he committed two or more acts of sexual abuse. Thus, we hold the trial court provided jurors with the proper unanimity instruction with regard to the offense of continuous sexual abuse. See TEX. PENAL CODE ANN. § 21.02(d); Meraz, 415 S.W.3d at 505; Render, 316 S.W.3d at 857. We therefore overrule that portion of Carter's complaint regarding unanimity as it relates to the offense of continuous sexual abuse of a child. 2. Indecency with a Child

In Counts II and III, Carter was charged with indecency with a child by contact. In the court's charge, with regard to each count, jurors were advised that to find Carter guilty, they had to find he engaged in sexual contact with T.G. by touching part of her genitals on particular dates. The trial court did not provide any specific instructions as to unanimity for either count.

As noted in our discussion of the law applicable to this case, jury unanimity is mandated in all criminal cases, requiring jurors to agree unanimously about the specific crime committed. TEX. CONST. art. V, § 13; TEX. CODE CRIM. PROC. ANN. art. 36.29(a); Cosio, 353 S.W.3d at 771. In this case, the State charged Carter with two separate counts of indecency with a child by contact, but presented evidence that Carter committed the charged offenses on multiple, but separate occasions. Specifically, the victim, T.G., testified to an incident of sexual abuse in the living room, multiple incidents of abuse in her bedroom, multiple incidents of abuse in Carter's bedroom, and multiple incidents of abuse in the bathroom. T.G. stated the sexual abuse occurred every other day for several years. This is one of the very situations recognized by the court in Cosio where non-unanimity may occur. 353 S.W.3d at 771. To guarantee unanimity in this context, the court of criminal appeals stated "the jury must be instructed that it must unanimously agree on one incident of criminal conduct (or unit of prosecution)" for each offense alleged. See id. at 776. In other words, it was incumbent upon the trial court to instruct the jurors that to find Carter guilty of indecency with a child by contact, they had to agree on a single and discrete incident of sexual abuse committed by Carter for each count of indecency with a child. See id. An instruction was required because each of the multiple incidents established a different offense or "unit of prosecution." Id. at 771. As the Cosio court held:

[G]uaranteeing unanimity is ultimately the responsibility of the trial judge because the judge must instruct the jury on the law applicable to the case. The trial judge is therefore obligated to submit a charge that does not allow for the possibility of a non-unanimous verdict . . . [and] must craft a charge that ensures that the jury's verdict will be unanimous based on the specific evidence presented in the case.

Id. at 776.

In this case, the trial court failed to instruct the jurors as required. And, contrary to the State's contention, the instruction to jurors that after they "reached a unanimous verdict," the foreman would so certify by filling out the forms attached to the charge and signing his or her name was not sufficient. This boilerplate instruction as to how the verdict forms would be completed in no way advised the jurors that they were required to agree unanimously — with regard to each count of indecency with a child — on a single and discrete incident of sexual abuse committed by Carter. We therefore hold the trial court erred in failing to properly instruct the jurors on unanimity with regard to the indecency with a child by contact counts. Because we have determined the trial court erred, we must now determine whether the error entitles Carter to a reversal. See Reeves, 420 S.W.3d at 816; Ngo, 175 S.W.3d at 743; Ochoa, 119 S.W.3d at 828.

Carter failed to object to the complained of portions of the charge. Accordingly, because he failed to object, to be entitled to a reversal, he must establish the error was "fundamental," i.e., it was so egregious and created such harm that he did not receive a fair and impartial trial. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza, 686 S.W.2d at 171). "An egregious harm determination must be based on a finding of actual rather than theoretical harm." Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015) (quoting Cosio, 353 S.W.3d at 777); see Fulcher v. State, 274 S.W.3d 713, 716 (Tex. App.—San Antonio 2008, pet. ref'd). An appellant establishes actual harm when the erroneous instruction affected "the very basis of the case," "deprive[d] the [appellant] of a valuable right," or "vitally affect[ed] a defensive theory." Arrington, 451 S.W.3d at 840 (quoting Cosio, 353 S.W.3d at 777); see Fulcher, 274 S.W.3d at 716.

The court of criminal appeals has held that in determining whether an appellant was egregiously harmed by an improper jury instruction, we should examine the following four factors: (1) the entire jury charge; (2) the state of the evidence, including contested issues and the weight of the probative evidence; (3) the parties' arguments; and (4) all other relevant information in the record. Arrington, 451 S.W.3d at 840 (quoting Cosio, 353 S.W.3d at 777); see Fulcher, 274 S.W.3d at 716. The review we undertake is fact specific and conducted on a case-by-case basis. Arrington, 451 S.W.3d at 840 (quoting Gelinas v. State, 703, 710 (Tex. Crim. App. 2013)). We will review each factor as mandated. a. Entire Jury Charge

Although the trial court provided a proper unanimity instruction as to the offense of continuous sexual abuse of a child, the charge permitted non-unanimous verdicts based on the evidence presented with regard to both counts of indecency with a child. The unanimity instruction given in conjunction with the continuous sexual abuse count was the antithesis of the instruction required for the indecency offenses. For the continuous sexual abuse offense, the jurors were specifically told they were not required to agree on specific and discrete incidents of sexual abuse; rather, they could simply agree that two or more incidents of sexual abuse occurred within a thirty day or more period. In the absence of a proper unanimity charge, jurors could have reasoned they were likewise not required to unanimously agree on a specific and discrete incident of sexual abuse for each indecency count. Thus, it could be argued the error in failing to give a unanimity instruction with regard to the indecency counts was compounded by the unanimity instruction given in conjunction with the continuous sexual abuse count. There is, however, no direct evidence of juror confusion. Thus, potential juror confusion based on the unanimity instruction given in conjunction with the continuous sexual abuse offense is speculative. And, as we know from Arrington, egregious harm cannot be based on theoretical harm. 451 S.W.3d at 840.

As noted, however, there was absolutely no unanimity instruction provided in conjunction with the indecency counts. Other than the continuous sexual abuse unanimity instruction, the only other mention of the word "unanimous" in the jury charge was the standard language regarding the foreman's certification of the verdict. Again, we recognize this language did not provide a proper unanimity instruction with regard to the indecency counts. Moreover, the trial court's error in failing to instruct the jurors on unanimity affected not just one count, but both counts of indecency with a child — thereby affecting two of the three counts upon which Carter was convicted. We therefore hold this factor weighs in favor of a finding of egregious harm. See id. at 841 (holding that because jury charge permitted non-unanimous verdicts based on evidence presented and affected more than one count, this factor weighed in favor of finding egregious harm). b. State of the Evidence

Under this factor, "we look to the state of the evidence to determine whether the evidence made it more or less likely that the jury charge caused appellant actual harm." Id. Carter contends inconsistencies in the victim's testimony, the lack of medical or other forensic evidence, and the absence of witnesses to corroborate the victim's testimony weigh in favor of a finding of egregious harm. We also note here that it appears much of Carter's "harm" argument is based on perceived harm he contends resulted from the trial court's failure to provide a unanimity instruction in conjunction with the offense of continuous sexual abuse of a child. However, as discussed above, the trial court provided a proper unanimity instruction with regard to this offense — the jury was not required to agree on which specific acts of abuse a defendant commits in order to convict a defendant for continuous sexual abuse. See TEX. PENAL CODE ANN. § 21.02(d); Meraz, 415 S.W.3d at 505; Render, 316 S.W.3d at 857. Thus, we are reviewing the evidence to determine only if it made it more or less likely the jury charge — as it relates to the indecency offenses — caused Carter actual, egregious harm.

As detailed above, T.G. testified about numerous incidents of sexual abuse. She provided

testimony of sexual abuse in various rooms in her house. According to T.G., Carter touched her genitals over and under her underwear in the living room, in her bedroom, in his bedroom, and in the family bathroom. She stated Carter also attempted, at times, to climb on top of her. In the bathroom, Carter inserted his penis into her anus. T.G. testified the touching occurred "like every other day" for eight years.

Carter attempted to establish inconsistencies in T.G.'s testimony, pointing out that when she reported the abuse to the first police officer, he put in his report that she claimed Carter had penetrated her anus on two occasions. T.G. later claimed it was only once. T.G. stated she could not remember what she told the first officer and did not remember telling him the penetration occurred twice — once when she was eleven and again when she was sixteen. Rather, she remembered telling him about one incident — the one she testified occurred in the bathroom.

He also attempted to establish T.G. had a motive to lie, claiming she alleged sexual abuse by Carter only because she had been happy in her foster home and wanted to return there. Admittedly, in her statement to the detective, she told him she had been happy in the foster home and wanted to stay, but on the stand, she stated she did not remember telling the detective she wanted to stay in foster care, testifying her previous foster home was merely "okay." It seems unlikely T.G. would have waited approximately eight years to claim abuse if her intent was to be returned to her previous foster home. And, in fact, T.G. testified she waited so long to come forward because she feared she and her siblings would be placed in foster care.

Carter points to the testimony of T.G.'s younger sister, with whom T.G. shared a room. However, we do not find this testimony contrary to that given by T.G. In T.G.'s statement to the detective, she stated her younger sister knew what was happening and actually teased her about it. And according to T.G., Carter came into their room numerous times, pulling T.G. from the top bunk bed, suggesting her younger sister must have known. And, when the younger sister testified, she admitted that at times she would awaken and see Carter in their bedroom next to T.G.'s bed. The younger sister stated Carter had his back to her and she could not see what he was doing. On cross-examination, she agreed with Carter's attorney that Carter was in their bedroom to "check" on them. She admitted there were times when she woke up and T.G. was not in the bedroom and that sometimes T.G. was alone with Carter in his bedroom "a lot," though on cross-examination, she agreed T.G. sometimes fell asleep in the living room while watching television. When asked if she thought "something was going on," she replied, "I don't know." She also confirmed T.G.'s testimony that Carter locked the front door at night and it was impossible to leave the house without the key he kept with him.

In this same vein, Carter points out the evidence showed the family lived in a small house, but apparently no one — meaning T.G.'s younger siblings as well as neighbors — heard anything. T.G. testified she would scream and yell at Carter to make him stop, but no one ever came to her aid. The younger sister denied ever hearing her sister cry out during the night, stating she would have helped her if she had. Carter suggests this is some evidence T.G. fabricated the allegations.

The record reflects there were some small inconsistencies in T.G.'s testimony — one penetration as opposed to two, wanting to stay in a prior foster home versus being afraid to be placed back in foster care — and there was no one to corroborate T.G. allegations. The record further indicates T.G.'s younger sister denied seeing or hearing anything relating to Carter's sexual abuse of T.G. despite sharing a room with T.G. There was also no medical or forensic evidence proving the abuse, as related by T.G., occurred. However, Carter raised these inconsistencies in front of the jury during cross-examination and in closing argument, pointed out the absence of medical or forensic evidence, and reminded the jury that no one other than T.G. could verify her allegations. As we know, however, the testimony of a child victim alone is sufficient to support a conviction for indecency with a child. Allen v. State, 436 S.W.3d 815, 820 (Tex. App.—Texarkana 2014, pet. ref'd); Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff'd, 206 S.W.3d 620 (Tex. Crim. App. 2006); Cantu v. State, 366 S.W.3d 771 775 (Tex. App.—Amarillo 2012, no pet.). And, corroboration of the victim's testimony by medical or other forensic evidence is not required. Lee, 176 S.W.3d at 458. Rather, the absence of corroborating evidence is merely a factor for the jury to consider in weighing the evidence. Id.

Our review of the record establishes Carter was unsuccessful at impeaching the victim's testimony. Obviously, having convicted him of all three offenses, the jury was not persuaded by Carter's credibility defense. Had jurors been persuaded, they would not have convicted him of all three offenses and might not have convicted him at all. Accordingly, we hold the state of the evidence weighs against a finding of egregious harm. Given that Carter was able to advise the jury of the alleged inconsistencies and other matters upon which he relies to suggest his innocence, we cannot say he was denied a fair and impartial trial based on the charge error.

c. Parties' Arguments

Under this factor, we must determine whether any statements made by the State, Carter's trial attorneys, or the trial court exacerbated or ameliorated the error in the charge. Arrington, 451 S.W.3d at 844. In its closing argument, the State advised the jurors they were not required to "agree on which instances of sexual abuse occurred" with regard to the offense of continuous sexual abuse of a child. The State emphasized that with regard to that offense, the jurors need only agree on was whether acts of sexual abuse occurred two or more times in a period of thirty or more days. Reviewed in context, the State was unquestionably talking only about the continuous sexual abuse offense. Nevertheless, the State's argument possibly compounded the error resulting from the trial court's failure to provide the jury with a unanimity instruction with regard to the indecency counts. This portion of the State's argument could have lead jurors to believe unanimity as to a specific instance of sexual abuse was not required for any of the charged offenses, including the counts of indecency with a child by contact. This is, however, pure speculation and as the court stated in Arrington, a finding of egregious harm must be based on actual, not "theoretical harm." Id. at 840.

With regard to the indecency counts themselves, the State made no reference to the requirement of unanimity. Neither of Carter's attorneys mentioned unanimity in their arguments. At the conclusion of argument, the trial court advised the jurors the court would "remain in recess until you have reached a unanimous verdict." However, much like the boilerplate language in the charge, this general statement did not advise the jurors they were required to agree unanimously on a specific and discrete act of sexual abuse for each of the indecency counts.

Based on the State's argument that the jurors were not required to agree unanimously on the specific acts of sexual abuse committed by Carter when determining his guilt with regard to the continuous sexual abuse count, the jurors could have understood this to mean they were not required to agree unanimously on the specific act of sexual abuse Carter committed when determining his guilt on the indecency counts, given the absence of a unanimity instruction to the contrary. However, this potential misunderstanding is theoretical as there is no evidence in the record to establish jury confusion. See Arrington, 451 S.W.3d at 840.

The issue of unanimity was mentioned only at the beginning of the State's argument and with reference not to the indecency counts, but as to the continuous sexual abuse count. Carter's trial attorneys never made any reference to unanimity during their argument. The trial court referenced unanimity at the close of argument, but only in the most general sense. In Ngo, where the court found egregious harm resulting from the failure to charge the jury as to unanimity, the jury was repeatedly told it need not return a unanimous verdict. 175 S.W.3d 752. In this case, no one told jurors they "did not have to be unanimous about the specific instances of criminal conduct" with regard to the indecency counts. See Cosio, 353 S.W.3d at 777. Accordingly, this factor weighs neither for nor against a finding of egregious harm. See Arrington, 451 S.W.3d at 844.

d. Other Relevant Information in the Record

During voir dire, the State advised the venire, when discussing the offense of continuous sexual abuse, that it was "unique" in that jurors were not required to agree on what dates the abuse occurred or the exact nature of the sexual abuse. The State did not explain unanimity was mandated with regard to the indecency counts. Thus, as with the charge itself and the State's closing argument, the jurors could have mistakenly assumed — given the absence of an instruction or statement to the contrary — that the same was true as to the indecency counts. On the other hand, the State's use of the word "unique" may have had the opposite effect, leading the jurors to believe the unanimity mandate was applicable only to the continuous sexual abuse offense. However, either position is purely speculative, and therefore, will not support a finding of egregious harm. Id. at 840.

Carter points to his decision to reject a plea offer from the State as evidence of egregious harm. The record reflects the State offered to allow Carter to plead guilty to the offense of indecency with a child by exposure, "carrying a maximum sex offender registration of 10 years from the date he walks out of jail, and . . . offering him judgment satisfied on that. So he could walk out of the jail presumably this afternoon versus 25 to life, no parole, which is what he's facing on the current charge [of continuous sexual abuse of a child]." Carter's attorney "encouraged" him to accept the offer, but he declined. Carter argues this plea offer is evidence of the "inherent weakness in the State's case."

Carter cites no authority, nor have we found any, that suggests a State's plea offer and a defendant's rejection thereof is evidence of actual, as opposed to theoretical, harm, much less egregious harm, as it relates to trial court error in the jury charge. Moreover, there is nothing in the record to explain why the State made the offer it did, and there are numerous possible reasons — e.g., avoiding putting the victim and other witnesses through the stress of testifying, saving prosecutorial resources. Finally, the alleged "weakness" of the State's case is addressed in our review of the state of the evidence, which we found weighed against a finding of egregious harm.

e. Consideration of the Four Factors

The only factor that weighs in favor of a finding of egregious harm is the consideration of the jury instructions — or lack thereof. In both Arrington and Cosio, the court of criminal appeals found no egregious harm even though in both cases that particular factor weighed in favor of egregious harm. See Arrington, 451 S.W.3d at 840-45; Cosio, 353 S.W.3d at 777-78. Accordingly, we likewise conclude the trial court's failure to provide a proper instruction on unanimity with regard to the indecency counts did not cause Carter egregious harm. See Arrington, 451 S.W.3d at 840-45; Cosio, 353 S.W.3d at 777-78. Although the instructions failed to instruct jurors to agree unanimously on the particular acts necessary to support each indecency with a child count, our analysis of three of the four Almanza factors do not suggest Carter suffered egregious harm.

CONCLUSION

Based on our analysis, we hold: (1) the trial court properly instructed jurors with regard to unanimity as to the offense of continuous sexual abuse of a child; and (2) although the trial court erred in refusing to instruct the jurors with regard to unanimity as to the offenses of indecency with a child by contact, such error was harmless. We therefore overrule Carter's complaints and affirm the trial court's judgment.

Marialyn Barnard, Justice Do Not Publish