Unreported / Non-Citable
Background
A jury convicted Michael Jones of continuous sexual abuse of a young child, aggravated sexual assault of a child, and indecency with a child. The charges involved two children, A.W. and S.N. The evidence concerning S.N. included her testimony that Jones carried her to a living room, removed her shorts, and touched her vagina with his hand and mouth, as well as testimony that she repeatedly awoke after sleepovers without pants or underwear.
The trial court imposed consecutive prison terms of thirty-seven years, ten years, and four years. On appeal, Jones argued that bench conferences were not recorded despite a pretrial order, that the record did not show the jury had been statutorily qualified, and that the jury charges permitted non-unanimous verdicts on the aggravated-sexual-assault and indecency offenses.
The Court’s Holding
The Thirteenth Court of Appeals affirmed all three judgments. It held that Jones failed to preserve his complaint about the unrecorded bench conferences because he did not object during trial when the court reporter failed to record them. It also held that the record’s silence about whether prospective jurors were asked the statutory qualification questions did not overcome the appellate presumption that the jury was properly impaneled.
On aggravated sexual assault, the court held that no specific unanimity instruction was required because the evidence identified only one discrete incident in which Jones’s mouth contacted S.N.’s sexual organ. On indecency by exposure, the court assumed without deciding that the absence of a more specific unanimity instruction was error. Because Jones had not objected, however, reversal required egregious harm. The court found none, reasoning that Jones presented an all-or-nothing fabrication defense and that neither the evidence nor the arguments meaningfully distinguished among the alleged exposure incidents.
Key Takeaways
- A pretrial order requiring bench conferences to be recorded does not preserve an appellate complaint when the defendant fails to object to the reporter’s omission at trial.
- A silent record does not affirmatively establish that prospective jurors were never asked the statutory qualification questions or rebut the presumption that the jury was properly impaneled.
- An unpreserved failure to give an incident-specific unanimity instruction does not warrant reversal absent actual egregious harm; a merely theoretical possibility of juror disagreement is insufficient.
Why It Matters
The opinion underscores that defendants must contemporaneously object to failures in creating the trial record, even when a court previously granted a motion requiring proceedings to be recorded. It also confirms that an appellant cannot establish improper jury qualification merely by pointing to an appellate record that does not contain the qualification questions.
For jury-charge challenges involving repeated sexual misconduct, the decision distinguishes between evidence of one discrete act supporting a charged offense and evidence of multiple possible units of prosecution. Even when multiple incidents may require a more specific unanimity instruction, an unpreserved error warrants reversal only when the full record shows actual egregious harm.