French v. Texas

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The Court of Appeals reversed appellant Cody French’s conviction for the aggravated sexual assault of a child. The appellate court held the trial court erred in not giving a unanimity instruction to the jury as to which orifice Appellant penetrated with his sexual organ. The court of appeals concluded appellant properly objected to the instruction, and it applied a “some harm” analysis under Almanza v. Texas, 686 S.W.2d 157 (Tex. Crim. App. 1985). The Texas Court of Criminal Appeals granted the State’s petition for discretionary review to address two issues: (1) whether appellant failed to preserve error by not leveling an appropriate objection to the jury charge at trial; and (2) whether appellant suffered any level of harm - either “some” or “egregious” - as a result of the trial court’s jury charge. The Texas Court of Criminal Appeals reversed the Court of Appeals. The Court found “overwhelming evidence” presented at trial that Appellant contacted and penetrated J.F.’s anus with his sexual organ on multiple occasions, in several different locations. The State said nothing during its final argument to encourage the jury to convict Appellant of genital-to-genital contact and/or penetration. And for his part, appellant offered no defense specifically tailored to suggest that he only contacted and/or penetrated J.F.’s sexual organ and not her anus. Appellant’s defense was that he did not sexually assault J.F. at all. “All of this suggests to us that the erroneous jury instruction in this case was not ‘calculated to injure the rights of the defendant,’” and that any harm resulting from the error was purely theoretical, not actual. As a result, Court held that the record fails to support the court of appeals’ conclusion that Appellant suffered “some” harm from the trial court’s failure to instruct the jury that it must be unanimous with respect to which of J.F.’s orifices was penetrated. It therefore reversed the judgment of the court of appeals and remanded the case for further proceedings. View "French v. Texas" on Justia Law