Comment

The Texas Constitution requires that jury verdicts in felony cases be unanimous, and statutory law requires unanimity in all criminal cases. Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007).

Instructions to juries must, of course, direct juries to be unanimous when the law requires this. Recent developments in jury unanimity law have greatly increased the difficulty of jury submission of many criminal cases. The decisions have not been clear regarding the differences, if any, among the requirements of federal constitutional law, Texas constitutional law, and Texas statutory law.

Unanimity Regarding Alternatives Submitted to Jury. Many statutes defining crimes set out alternatives. The state frequently seeks conviction under alternative theories. Sometimes in these cases, but not always, jury unanimity requires that a given jury agree on which alternative the jury relies on in finding the defendant guilty.

When the state relies on different “incidents” or “acts” as constituting different commissions of a single statutorily defined offense, unanimity is required. It has no significance that the state contends that these different commissions violated the statute because each of them would be proved by relying on different “theories” or alternative ways of committing the statutory offenses. Unanimity is required not by the state’s reliance on different theories or ways of committing the charged crime but rather by its reliance on different acts or incidents. Stuhler v. State, 218 S.W.3d 706, 716–17 (Tex. Crim. App. 2007) (explaining Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), and Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000)).

The major problem arises when the state relies on a single incident or act and argues that by this incident or act the defendant committed the crime under different and alternative theories. In Stuhler, for example, the state relied, alternatively, on proof that the defendant committed indecency with a child by contact by causing the victim to suffer (1) serious bodily injury or (2) serious mental deficiency, impairment, or injury. The charged offense was created and defined by Tex. Penal Code § 22.04(a), which permitted conviction under either theory.

In these cases, “ ‘[j]ury unanimity is required on the essential elements of the offense’ but is ‘generally not required on the alternate modes or means of commission.’ ” Pizzo, 235 S.W.3d at 714 (quoting Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006), quoting State v. Johnson, 243 Wis. 2d 365, 627 N.W.2d 455, 459–60 (2001)).

The question in cases such as Stuhler is the nature of the statutory alternatives. If causing serious bodily injury to a child and causing serious mental deficiency, impairment, or injury to a child are different offenses, each with different “essential elements,” juries must be unanimous about one or the other as the basis for the defendants’ convictions. If those options are instead “alternate modes or means of commission” of a single statutory crime, they do not define different essential elements. In these situations, jurors who all agree the defendant is guilty need not agree on the alternative under which guilt is established.

In a specific situation, then, the issue is whether statutory alternatives reflect different statutory offenses or rather different means of committing a single statutory offense.

In Stuhler, the court of criminal appeals adopted, as a rule of thumb for interpreting this aspect of statutes, an analysis first suggested by Judge Cochran concurring in Jefferson. Under this analysis, the court looks to the grammatical structure of the statute. In a result-oriented offense such as injury to a child, the court will identify the main verb defining the conduct constituting the offense. If this verb has multiple direct objects, those objects are likely to each define a separate offense on which a jury must be unanimous.

In contrast, if the alternatives are provided by “adverbial phrases, introduced by the preposition ‘by,’” they are likely to describe a different manner and means of committing a single offense; the alternatives “are not the gravamen of the offense, nor elements on which the jury must be unanimous.” Stuhler, 218 S.W.3d at 718 (quoting Jefferson, 189 S.W.3d at 315–16 (Cochran, J., concurring, joined by Price and Johnson, J.J.)).

In Stuhler itself, the court concluded that the alternatives were different offenses. Consequently, the jury charge had to make clear to the jury that it must be unanimous on whether it found the defendant had been proved to have caused serious bodily injury to the child victim or, rather, to have caused serious mental deficiency, impairment, or injury to that victim.

Pizzo addressed indecency with a child as defined by several Penal Code provisions, which together defined the offense as touching of the anus, breast, or any part of the genitals of a child with intent to arouse or gratify the sexual desire of any person. The majority applied the Stuhler analysis as indicating that touching the breast of the victim and touching the genitals of the victim were different offenses. When a jury is given these as alternatives, the instructions must make clear that the jury must be unanimous on which alternative is relied on to convict.

Three members of the court in Pizzo, including Judge Cochran, disagreed on the reasoning by which the court should reach the result of the majority opinion. They found that proper application of the Stuhler analysis indicated that the alternatives were not separate offenses. Since the Stuhler analysis is only a rule of thumb, they reasoned, the results it suggested might be contradicted by other means. They found other indicators of legislative intent controlling and requiring that touching the breast of the victim and touching the genitals be treated as different offenses. Pizzo, 235 S.W.3d at 722 (Price, J., concurring).

As a result of the case law, the Committee had difficulty predicting what the requirement of unanimity would require regarding the particular offense. The six-to-three split in Pizzo makes clear the difficulty of the Committee’s task. In addressing particular offenses, the Committee addressed as carefully as it could what the present case law suggests will be required.

Unanimity on Defensive Matters. How, if at all, the requirement of unanimity applies to defensive matters is not entirely clear.

The court of criminal appeals has held that a jury charge on sudden passion in a murder case must require the jury to be unanimous on a punishment phase finding adverse to the defendant, that is, on a finding that the defendant did not meet his burden of proving sudden passion. Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim. App. 2000).

Sanchez strongly suggests that the requirement of unanimity applies to both defenses and affirmative defenses. Cf. Chapman v. State, No. 01-00-00110-CR, 2001 WL 754812, at *1–2 (Tex. App.—Houston [1st Dist.] July 5, 2001, pet. ref’d) (not designated for publication) (jury charge on involuntary intoxication was adequate because it required all jurors to vote that defendant had not established defense of involuntary intoxication).

But if there are alternative grounds on which the jury can find against the defendant on a defense, jury unanimity apparently does not require the jury to be unanimous on the specific basis on which it finds against the defendant. Harrod v. State, 203 S.W.3d 622 (Tex. App.—Dallas 2006, no pet.) (jury charge on self-defense need not require unanimity on which “element” of self-defense the state “negated”).

Committee’s Approach. The Committee attempted to apply the approach of Stuhler and Pizzo in identifying when existing law requires a jury to be unanimous regarding alternatives presented by the definition of the charged offense.

Regarding defensive matters, the Committee concluded that under Sanchez and Harrod, the instructions must make clear that a jury’s decision to reject a defense or affirmative defense must be unanimous. If the decision to reject the defense or affirmative defense can rest on any of several alternative grounds, however, unanimity is not required regarding the specific ground.

In addition, of course, the Committee faced the troublesome matter of identifying language that would convey to juries the substance of the requirement of unanimity, once that substance had been determined. Rather than use the term unanimous and phrases derived from this, the Committee concluded that jurors were more likely to understand instructions put in terms of when all members of the jury must “agree.”

The Committee was also clear that the instructions should address the matter directly and, as explicitly as possible, explain to jurors on which matters they must all agree.