What Must a Child Witness Say to Convict of Indecency by Contact?

Jesus Cosio was convicted of four counts of indecency with a child by contact. He appealed to the Thirteenth Court of Appeals (Corpus Christi/Edinburg) in Case Number 13-08-00189-CR. John G. Hill, retired chief justice of Fort Worth's Second Court of Appeals, wrote an en banc opinion which was released Monday. The Edinburg Court reversed and remanded one of the charges with instructions to acquit Cosio and reversed and remanded the others for further proceedings. Justice Dori Contreras Garza joined the other members of the court in the acquittal, but not the reversal of the other charges.

The State alleged that an adult male touched a seven or eight year old girl's genitals. Two or three years after that, she is examined for physical evidence and none is found. At trial six or seven years later, she testified about four incidents:

• The man had touched her on the breast, her private part, and "mostly everywhere."(in 1999, 2000, or 2001)
  
• A week after the first incident—the one above— he touched her breasts and "mostly her whole body, mostly everything." (in 1999, 2000, or 2001)
  
• When she was eight years old, the man put his penis in her mouth, then in her vagina, and (in 2001, 2002, and 2003)
  
• When she was nine or ten, he touched her breasts and put his penis in her vagina. (in 2002, 2003, and 2004)
  

Was the first incident proved to legal and factual sufficiency? The second one?

 
The State tried Cosio as to four offenses:

• July 31, 2004, penetrating the complainant's mouth with his sex organ (aggravated child sexual assault);
  
• July 31, 2003, penetrating her sex organ with his (aggravated child sexual assault);
  
• July 31, 2004, touching part of her genitals (indecency with a child by contact); and
  
• July 31, 2003, touching part of her genitals (indecency with a child by contact).

The charge did not instruct the jury that they must be unanimous as to a single act to convict. Cosio did not object to the charge.

In order to determine if the evidence supporting a conviction is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence.

 
For unobjected-to jury-charge error to be reversible:

• The error must really exist and;
  
• It must deprive the defendant of a valuable right.
  

The girl's testimony that the man touched her in her private part is sufficient for a conviction. Her saying that he touched her breasts and "mostly her whole body, mostly everything" does not.

 
To not require unanimity as to a single act is error. It deprived defendant of his valuable right of a unanimous jury verdict. He has a right to a retrial.  
 
The proof of the second incident is insufficient; acquittal is required.

 
The dissent would hold that:

1. there was no error in the jury charge;
   
2. even if there was error, that error was not preserved for review; and
   
3. even if Cosio was not required to preserve his error in order to obtain an egregious harm review, he did not suffer egregious harm.
   

The dissent appears to me to be a signal to the Court of Criminal Appeals that they should reverse the jury charge issue.