Reported / Citable
Background
Jesse Espinoza Herrera moved into a home with his girlfriend L.F. and her four adopted children when the victim, D.F., was eleven or twelve years old. D.F. grew close to Herrera, whom the children regarded as a stepfather. According to D.F.’s trial testimony, Herrera began sexually abusing her shortly after moving in, starting with touching her over her clothes and progressing over time to repeated vaginal penetration in the family home, a backyard pool, a vehicle, and a nearby park. The abuse continued until early 2022, when D.F.—then fourteen—ran away to live with her biological mother, who contacted police. D.F.’s last reported incident occurred in December 2021.
Herrera was charged by indictment with eleven counts: one count of continuous sexual abuse of a child, five lesser-included counts of aggravated sexual assault of a child, three lesser-included counts of indecency with a child, a stand-alone count of indecency with a child by breast-touching (Count Nine), and a stand-alone count of sexual assault of a child (Count Eleven). He pleaded not guilty and proceeded to a jury trial in the 372nd District Court of Tarrant County. The jury acquitted Herrera on all counts except Count Nine and Count Eleven, on both of which it found him guilty. During the punishment phase, the jury found a habitual-offender allegation to be true and assessed life imprisonment on each count. The trial court sentenced him accordingly.
On appeal, Herrera raised a single issue: that the trial court erred by failing to include in the jury charge an incident-specific unanimity instruction directly tied to Counts Nine and Eleven, and that this omission caused him egregious harm by allowing a conviction based on a nonunanimous verdict.
The Court’s Holding
The Second Court of Appeals affirmed the convictions, holding that the jury charge was not erroneous. Writing for the panel, Justice Wallach concluded that although the charge’s incident-unanimity instruction was formally directed at the lesser-included aggravated-sexual-assault and indecency-with-a-child counts, it nonetheless sufficiently conveyed to jurors that they had to unanimously agree on a specific incident of criminal conduct before convicting Herrera of any indecency-with-a-child or sexual-assault offense—including the stand-alone Counts Nine and Eleven. The court distinguished its prior decision in Braggs v. State, where only a generic unanimity instruction had been given, noting that the charge here contained more robust language requiring unanimous agreement on “one incident of criminal conduct” meeting all essential elements.
The court further held that even assuming the instruction’s failure to reference Counts Nine and Eleven directly rendered the charge erroneous, the record showed no egregious harm. The case presented an all-or-nothing credibility determination: Herrera categorically denied any sexual conduct, and the jury’s verdict demonstrated that it credited D.F.’s testimony and carefully evaluated the evidence. Because Herrera’s defense did not target the breast-touching or sexual-organ-contact allegations any more specifically than his other denials, there was no basis to conclude that jurors disagreed about which particular incident satisfied Counts Nine or Eleven.
Key Takeaways
- A jury charge that contains an incident-unanimity instruction for lesser-included offenses may suffice for stand-alone counts of the same offense category, even if those counts are not expressly referenced, provided the instruction adequately conveys the unanimity requirement to jurors.
- When the defense presents an all-or-nothing denial of all alleged conduct rather than targeting specific incidents, the “egregious harm” threshold for unpreserved jury-charge error is difficult to meet, because there is little basis to infer that jurors were divided over which particular incident to credit.
- Because Herrera did not object to the jury charge at trial, reversal required a showing of egregious harm—actual, not merely theoretical—under the Almanza standard, a burden the court found he could not satisfy.
Why It Matters
This decision refines the boundary between adequate and inadequate jury-charge unanimity instructions in Texas child-sex-abuse prosecutions where multiple incidents are alleged but only some are charged as stand-alone offenses. Practitioners on both sides should note that courts will look to the charge as a whole rather than demanding that each count carry its own boilerplate unanimity language—but that the safer drafting practice remains expressly tying the incident-unanimity instruction to every charged count.
The opinion also reinforces how the structure of a defendant’s trial theory can shape the egregious-harm analysis on appeal. Where a defendant mounts a blanket denial and the jury renders a selective verdict, appellate courts are likely to view the verdict as a careful credibility determination rather than evidence of juror confusion—making it harder to establish the actual, case-altering harm that Almanza requires.