Clear v. State
In Clear v. State, 76 S.W.3d 622 (Tex. App.--Corpus Christi 2002, no pet.), the indictment alleged that Clear penetrated the female sexual organ of a child with his finger, penetrated the female sexual organ of the same child with his sexual organ, and also that he penetrated her mouth with his sexual organ.
The jury charge instructed the jury to find Clear guilty of the offense of aggravated sexual assault, if it found that he either penetrated the child's female sexual organ with his finger or penetrated or contacted it with his sexual organ. Id. at 623.
During closing argument, the prosecutor argued in reference to the options that the jury had with regard to the allegations of penetration by the finger or contact or penetration by the penis of the child's sexual organ that:
You can go back there and deliberate and you can all decide that we have proven every one of those to you. You can decide that. Or you can go back there, four of you could decide, you know, "You've proven the finger penetration. I'm not convinced about the contact by the male sexual organ."
Another four of you could say, you know, "You've proven everything." And the remaining four of you could say, "Well, you know, I believe the State proved that there was penile penetration. I wasn't convinced about the finger penetration."
As long as we have proven to each and every one of you at least one of these manners, we are entitled to a guilty verdict. You don't all have to agree on which manner we've proven it to you, as long a we've proven one of these.
So we only have to convince you of one, but there's three different ways that you can find this man guilty, Okay?
Id. at 623-24.
The State admitted charge error, but contested that egregious harm had occurred. Id. at 623.
The State argued that the error was not egregious, because the evidence was overwhelming that he was guilty, and the record showed that the jury found the victim's entire testimony to be credible and unassailable. The State reasoned that, as the jury believed the accused penetrated the victim's vagina with his penis, it presumably also believed he penetrated her with his finger.
The State also noted that, as a result of the manner in which the case was submitted, the accused received only one conviction instead of two, which would benefit him should he be convicted in another upcoming case. Id. at 624.
The Clear court rejected this reasoning and found that he had suffered egregious harm.
The court stated that it could not determine what the jury believed regarding the offenses that were charged. As such, to find that the harm was not egregious, because the jury would surely have found Clear guilty of all the offenses if given the opportunity, would put the court in the place of the jurors and would deprive Clear of his right to a guilty finding by a unanimous jury. The cause was reversed and remanded for new trial. Id.