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Houston, Texas - Criminal Defense lawyer represented defendant with appealing the four judgments of three possessions of child pornography and continuous sexual abuse of a child.
Jane is the complainant in these four cases.3
Jane’s mother and Cruz worked
together and began dating in 2014. At the time, Jane was seven years old, and she
lived with her mother and four siblings in an apartment that was in disrepair. After
their roof started leaking, Jane and her family moved in with Cruz at his apartment
in Rosenberg, Texas. They all lived there from 2014 until 2016. They then moved
to a new apartment in Houston leased by Cruz. The family lived there with Cruz
until March 2017. While they lived with Cruz, Jane’s mother stopped working, and
the family became financially dependent on Cruz.
In addition to providing Jane and her family a place to live, Cruz also bought
them clothes and electronics. Cruz gave Jane and her older sister, Amy, each a tablet
computer and a cell phone. Cruz had his personal Google email (Gmail) account on
Jane’s and Amy’s tablets. This allowed Cruz to upload photographs from the tablets
to the Google cloud service associated with his Gmail account.
Cruz set up an Instagram account for Jane on her tablet. Cruz also accessed
the Instagram account on his cell phone.
After she and her family moved into the Rosenburg apartment, Cruz began
sexually abusing seven-year-old Jane. The first instance of sexual abuse occurred
when Jane was sick and had a fever. Jane was sleeping with her mother, and Cruz
was also in the bed. Cruz began hugging her. When her mother went to the kitchen
to get a cold cloth for Jane’s head, Cruz touched Jane’s breasts and her vagina with
Cruz continued to sexually abuse Jane after they moved to the Houston
apartment. At trial, Jane testified that, on one occasion, Cruz removed her clothes
and touched her genitals with his penis. When asked if he put his penis anywhere
else, Jane testified that Cruz “would put it on my breasts.” She further testified that
Cruz forced her to perform oral sex on him.
Cruz also put pornography on Jane’s tablet and showed her pornography that
he was watching, asking her if she wanted to try it. She testified that Cruz would
“walk around naked in the house” and “bother” her. Jane locked her bedroom door,
but Cruz disabled the lock “for him to come in every day.”
Jane testified that, after they moved to the Houston apartment, Cruz bothered
her “a lot” for photographs of herself and “wouldn’t leave [her] alone.” He sent
messages to Jane through Instagram with pictures of “naked women,” asking her to
take photographs of herself for him, posing like the women. Jane complied with the
requests in exchange for candy and being allowed to have her tablet. She used both
Cruz’s cell phone and her tablet to take sexually explicit photographs of herself. She
confirmed in her testimony that, in the photos, she displayed her breasts, genitals,
Cruz also asked Jane’s older sister, Amy, to take nude photos of herself. Amy
was 13 or 14 years old at the time. Amy rebuffed Cruz at first but then agreed, using
Cruz’s cell phone to take the pictures. In exchange, Cruz gave Amy marijuana.
On March 26, 2017, Cruz sent Jane suggestive photographs while Jane was
sitting next to her mother at their apartment. Jane’s 21-one-year-old cousin, Mary,
happened to come to the apartment at that time. At trial, Mary testified that Jane’s
mother was “in a panic” and was on the phone with Cruz’s sister. Mary saw
messages on Jane’s tablet that she described as “images of scantily clad women and
asking [Jane] to pose like that, like the pictures that [Cruz] was sending her, telling
her to pose like that for daddy, be a good girl for daddy.” Mary also saw photographs
in which Jane was unclothed. The tablet’s contents led Mary to believe that Cruz
was “raping” Jane, and she called the police.
Houston Police Department officers arrived on the scene, including Officer J.
Hasley. The officers obtained consent from Jane’s mother to search the apartment,
locating numerous digital devices in Cruz’s bedroom. Jane’s mother had the
password for Jane’s tablet and gave police permission to look through it. Officer
Hasley viewed the tablet at the scene and testified that he saw “inappropriate
messages for a 10-year-old child.” He also saw images that were “obvious
photographs of child pornography.” These included three images depicting the
“lewd exhibition” of Jane’s genitals. Officer Hasley photographed the tablet’s screen
to ensure the preservation of the images and messages. The police seized Jane’s
tablet as well as other digital devices, including two iPhones—an iPhone 6 and an
iPhone 7—belonging to Cruz.
Cruz was arrested at the scene for possession of child pornography. After
Cruz’s arrest, Jane and her siblings stayed with Mary at her home. In the initial days
after Cruz’s arrest, Jane disclosed to Mary the details of Cruz’s sexual abuse of her.
Detective S. Wyatt of the Houston Police Department was assigned to
investigate the case. She obtained search warrants (1) for the electronic devices
seized from Cruz’s apartment, (2) for the Google account associated with Cruz’s
Gmail address, and for (3) the Instagram account on the tablet. On Cruz’s iPhone 6,
the police found sexually explicit images of Amy. At trial, Detective Wyatt testified
that she considered 24 of the images of Amy on the iPhone 6 to be child
A search of the tablet revealed sexually explicit images of Jane, including 12
images that Detective Wyatt testified were child pornography. These included the
three images that Officer Hasley testified were a “lewd exhibition” of Jane’s genitals
and which were among the images he had photographed on the tablet at the scene.
A search of the Google account associated with Cruz’s email revealed that
digital photo albums had been created to store photographs on Google’s cloud-based
storage service. Among the photographs in the albums were the three images from
the tablet showing Jane’s genitals. The metadata for the photographs showed that
they were taken on March 24, 2017, and that the on-line albums containing them
were created on March 25, 2017.
The investigation resulted in Cruz being charged with the offense of
continuous sexual abuse of child. The indictment alleged that Cruz,
on or about JANUARY 1, 2016 CONTINUING THROUGH
JANUARY 1, 2017 unlawfully during a period of time of thirty or more
days in duration, commit[ted] at least two acts of sexual abuse against
a child younger than fourteen years of age, including an act constituting
the offense of AGGRAVATED SEXUAL ASSAULT OF A CHILD,
committed against [Jane] on or about January 1, 2016, and an act
constituting the offense of AGGRAVATED SEXUAL ASSAULT OF
A CHILD, committed against [Jane] on or about January 1, 2017, and
[Cruz] was at least seventeen years of age at the time of the commission
of each of those acts.
Cruz was also charged with three offenses of child pornography. Each of the
three indictments alleged that Cruz,
on or about MARCH 26, 2017, did then and there unlawfully
intentionally and knowingly POSSESS visual material, namely, a
DIGITAL IMAGE, that visually depicts a child younger than eighteen
years of age, at the time that the image was made, who was engaging
in sexual conduct, namely, LEWD EXHIBITION OF THE
GENITALS, and [Cruz] knew that the visual material depicted a child
engaging in said sexual conduct.
Jane testified at trial about Cruz’s sexual abuse of her over a three-year period
when she was seven to ten years old. She also testified about the nude photographs
she had taken of herself at Cruz’s request using the tablet and his cell phone.
Amy testified that she had taken nude photographs of herself at Cruz’s request
in exchange for marijuana. Amy stated that Cruz placed his email account on the
tablets that he had given to her and to Jane. Evidence at trial showed that the Google
profile on Jane’s tablet was for “Angel C”—Cruz’s first name and last initial—with
the email address of email@example.com.
Jane’s cousin, Mary, testified that when she went to the Cruz’s apartment, she
had discovered the messages from Cruz to Jane and the nude photographs of Jane
on the tablet. She stated that she called the police to report the child pornography on
the tablet. Mary also testified that she took Jane and her siblings from the apartment
to her home where Jane disclosed to Mary that Cruz had been sexually abusing her.
Officer Hasley and Detective Wyatt also testified. Officer Hasley testified that
he had photographed the screen of the tablet containing nude photographs of Jane.
He stated that, because data can be wiped remotely, he had been trained to
photograph the screen of a digital device to ensure preservation of the information.
Three photographs of the tablet’s screen taken by Officer Hasley at the scene
were admitted into evidence as State’s Exhibit (SX) 61, 62, and 63. Each photograph
showed a collage of images on the tablet’s screen. The collage of images shown in
SX 61 contained two images of Jane’s genitals. The collage of images seen in SX
62 contained the same two images of Jane’s genitals as seen in SX 61. SX 62 also
contained a third image of Jane’s genitals. Officer Hasley testified that the three
images seen in SX 61 and 62 depicted the “lewd exhibition” of Jane’s genitals. SX
63 contained photos of Jane posing provocatively, but her genitals are not seen.
During her testimony, Detective Wyatt also testified about the photographs
taken by Officer Hasley and about the virtual storage of the images:
Q. And [SX] 61 through 63, are these also photos of the tablet from the
scene of that morning?
Q. And are those images that consist of child pornography?
A. They are.
Q. How so?
A. Well, you can see [Jane] in the center of Exhibit 61. She is in one
photo, she is opening up her lips to her vagina and the other two she’s
bending over spreading her buttocks to expose her anus.
Q. And does it also expose her vaginal area?
A. Yes, it does.
Q. And would that be considered lewd exhibition of genitals?
A. It is.
Q. And is that a digital image?
A. It is.
Q. From these photos were you able to gather whether any applications
had actually been used by the tablet?
A. Yes, I can tell by—I can tell by the bottom part of the screen that it’s
Q. And how do you know that?
A. I am well aware of Google. There is also a little Google Cloud in the
upper right-hand corner.
Google houses Google photos, Google Plus, Chat applications. All
kinds of nifty little things that people use to exchange pictures and chats
and things online.
Q. How does Google Cloud operate for anyone who doesn’t know?
A. The easiest way to explain Google Cloud is it’s like a storage service.
It saves the information.
Q. Is it like a virtual album—
Q. And can it be password protected?
Q. Can the person who sets up the account have a password so only the
person who sets up the account has access to the images?
A. It can.
Q. So right off the bat when you see these images what are you thinking
you need to do to conduct this investigation?
A. I need to take the tablet and tag it for evidence and then submit it to
our lab to have the information extracted.
Q. And what about the Gmail account or possible Google account?
A. I need to do a search warrant to get the information from the Gmail
account for the Google [account].
In addition to Amy’s testimony about Cruz’s email, Detective Wyatt provided
testimony showing that the Gmail account on the tablet belonged to Cruz. Detective
Wyatt testified that search warrants were obtained for the digital devices found at
Cruz’s apartment, including the tablet and the iPhone 6, and for the Google account
associated with Cruz’s Gmail account and for the Instagram account accessed on the
tablet. She confirmed that the profile for the Gmail account,
firstname.lastname@example.org, found on Jane’s tablet, was “Angel C,” which is
Cruz’s first name and last initial. She also confirmed that Cruz’s cell phone number
was listed in the subscriber information for the Google account associated with
email@example.com. A forensic examination of the account revealed the
internet searches associated with it. The searches included: “Father and daughter
triple X stepdad” and “Curly hair sexy body white girls no face.”
Detective Wyatt testified that the subscriber information for Jane’s Instagram
account linked the account to Cruz. The account was registered under the email
account firstname.lastname@example.org, which is one digit different than the Gmail
account associated with the Google account containing the photo album. This
account uses a “2” and the other account uses a “1” at the end of “angelpctech.” The
phone number associated with the Instagram account was Cruz’s phone number and
was the same phone number associated with email@example.com.
Messages obtained from the Instagram account show correspondence between
Jane and someone appearing to be Cruz. The sender referred to himself as her
“daddy” and referred to members of Jane’s family in a manner indicating it was
Cruz. In the messages, Cruz asked Jane for pictures of herself and seemed concerned
that Jane’s mother will see the tablet. He also sent Jane pictures of adult women in
which their breasts and nipples can be seen. With the first photo of a woman, he
asked Jane, “Is this nice?” and “Or a different?” He then sends her another photo of
a woman in which her breasts are seen.
The State also offered into evidence exhibits containing the data returned on
the warrants for the devices and for the accounts. While reviewing the exhibits with
the State’s attorney, Detective Wyatt provided testimony to assist the jury in
understanding the information returned on the warrants.
SX 4 contained the information extracted from the iPhone 6. This included
thumbnail images of the photographs on the phone. Detective Wyatt testified that
the images on the iPhone 6 included “24 single file images” of Amy that were child
SX 11 contained the data and information forensically extracted from Jane’s
tablet. The exhibit contained thumbnails images of the images that were on the tablet.
Detective Wyatt testified that these included 12 images of child pornography.
Among those were the three images that Officer Hasley had photographed on the
tablet’s screen. These were the three images of Jane’s genitals for which Detective
Wyatt provided detailed testimony, set out above. The metadata from the tablet
showed that the photographs of Jane’s genitals had been taken or “captured” on the
tablet on March 24, 2017.
SX 101 contained information obtained through the search warrant for the
Google account associated with Cruz’s Gmail address. The information provided by
Google in response to the warrant showed that virtual photo albums were created in
the account on March 25, 2017. The photo albums contained the three images of
Jane’s genitals taken on March 24, 2017, using the tablet. These were the same three
images of Jane’s genitals that were in the information extracted from the tablet, as
seen in SX 4, and were the same three images contained in the photos taken by
Officer Hasley of the tablet’s screen, as seen in SX 61 and SX 62, and for which
Detective Wyatt provided detailed testimony.
Cruz’s defense was that he did not possess any of the child pornography or
engage in any of the charged conduct. Cruz’s defense was based primarily on
attacking the credibility of the State’s witnesses. The defense argued that Detective
Wyatt was too emotionally invested in the case and that her bias had colored her
investigation and her testimony. But the defense focused primarily on attacking
Jane’s and Amy’s credibility, indicating that Jane’s credibility was key to the jury
finding Cruz guilty of the offenses.
The defense pointed out that Jane and Amy admitted that they had taken the
nude photos of themselves. And the defense emphasized that Cruz was not the only
person with access to the tablet and cell phones. The defense argued that this
indicated that Cruz was not the only person in the house who had access to the
Google account to upload the pictures to the online photo album.
The defense also pointed to evidence that Cruz was stricter than the girls’
mother and that he had enforced household rules and schedules that the children had
never previously been required to follow. The defense’s theory was that Jane and
Amy were lying about Cruz’s role in the creation and possession of the child
pornography in order to get him out of the home so that they would not be required
to follow his rules.
After closing arguments, the jury was provided with four separate jury
charges—one charge for the continuous-sexual-abuse-of-a-child offense and three
separate charges for the child-pornography offenses. As mentioned, the three
indictments charging Cruz with three offenses of child pornography had identical
allegations, alleging that, on or about March 26, 2017, Cruz knowingly possessed a
digital image of a child under the age of 18 who was engaging in sexual conduct,
specifically, the lewd exhibition of the child’s genitals. In turn, the three jury charges
for the child-pornography offenses contained identical language.
The trial court’s jury charge for the continuous-sexual-assault-of-a-child
offense gave specific and general instructions regarding jury unanimity. But the trial
court’s charges for the child-pornography offenses provided only two generic
instructions regarding unanimity. The first instructed the jury that it must select a
foreman whose duty was “to preside at your deliberations, vote with you, and when
you have unanimously agreed upon a verdict, to certify to your verdict by using the
appropriate form.” The second, at the end of the charges, instructed the jury that its
verdict must be “by a unanimous vote of all members of the jury.” Cruz did not
object to the child-pornography charges on the basis that they allowed for nonunanimous verdicts, a complaint he now raises on appeal.
The jury found Cruz guilty of all four charged offenses. The trial court
assessed Cruz’s punishment at 10 years in prison for each child-pornography offense
and assessed his punishment at 50 years in prison for the offense of continuous
sexual assault of a child. Cruz appeals, raising one issue, challenging only his
conviction for the three child-pornography offenses.
Jury Unanimity Regarding Child-Pornography Offenses
In his sole issue raised in each of the three child-pornography cases, Cruz
asserts that the trial court erred because it did not instruct the jury in those cases that
it was required to unanimously agree on which digital image depicting child
pornography “satisfied each charge.” Cruz further contends that he was egregiously
harmed by the error.
A. Standard of Review
We review alleged jury charge error in two steps: first, we determine whether
error exists; if so, we then evaluate whether sufficient harm resulted from the error
to require reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005).
The degree of harm required for reversal depends on whether the jury-charge error
was preserved in the trial court. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim.
App. 2016); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)
(setting forth procedure for appellate review of claim of jury-charge error). If the
jury-charge error has not been properly preserved by an objection or request for
instruction, as here, the error must be “fundamental” and requires reversal only if it
was “so egregious and created such harm that the defendant was deprived of a fair
and impartial trial.” Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015)
(citing Almanza, 686 S.W.2d at 171).
B. No Egregious Harm
Texas law requires that a jury reach a unanimous verdict about the specific
crime that the defendant committed. Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim.
App. 2011); see TEX. CODE CRIM. PROC. art. 36.29(a). This means that every juror
must agree that “the defendant committed the same, single, specific criminal act.”
Ngo, 175 S.W.3d at 745.
A non-unanimous verdict “may occur when the State charges one offense and
presents evidence that the defendant committed the charged offense on multiple but
separate occasions.” Cosio, 353 S.W.3d at 772. Each of the multiple incidents
establishes a different offense or “unit of prosecution.” Id. In such a situation, it is
the trial court’s responsibility to ensure unanimity by instructing the jury that “its
verdict must be unanimous as to a single offense or unit of prosecution among those
In child-pornography cases, the possession of each item of child pornography
constitutes a separate unit of prosecution. See Vineyard v. State, 958 S.W.2d 834,
838 (Tex. Crim. App. 1998). Stated differently, each item of child pornography
found in a defendant’s possession constitutes a separate offense for which he may
be prosecuted.4 See Witt v. State, 237 S.W.3d 394, 397 (Tex. App.—Waco 2007, pet.
4 A person commits the offense of possession of child pornography under Penal Code
section 43.26(a) if the person knowingly or intentionally possesses visual material
that visually depicts a child younger than 18 years of age at the time the image of
the child was made who is engaging in sexual conduct, and the person knows that
the material depicts the child as described in subsection 43.26(a)(1). TEX. PENAL
CODE § 43.26(a)(1)–(2). Visual material includes any disk, diskette, or other
physical medium that allows an image to be displayed on a computer. Id.
§ 43.26(b)(3). As used in section 43.26, the meaning of “sexual conduct” includes
actual or simulated sexual intercourse, deviate sexual intercourse, and lewd
exhibition of the genitals. Id. § 43.25(a)(2); see 43.26(b)(2) (referencing definition
of “sexual conduct” found in Penal Code section 43.25(a)(2)).
ref’d) (citing Vineyard, 958 S.W.2d at 838; Roise v. State, 7 S.W.3d 225, 232 (Tex.
App.—Austin 1999, pet. ref’d)).
The State charged Cruz with three separate offenses of child pornography.
The allegations—that Cruz knowingly possessed a digital image of a child under 18
engaging in the lewd display of the child’s genitals—were the same in each of the
three indictments. The indictments did not identify a particular digital image to
correspond to each charged offense. And Cruz did not request the State to elect the
images for which it was seeking to convict him for each offense. See Cosio, 353
S.W.3d at 776 (explaining that, when defendant’s decision is not to elect, “jury must
be instructed that it must unanimously agree on one incident of criminal conduct (or
unit of prosecution), based on the evidence, that meets all of the essential elements
of the single charged offense beyond a reasonable doubt”).
Here, the State’s evidence included the three digital images of Jane’s genitals
that were on the tablet, as seen in SX 61 and SX 62, and which were uploaded to the
Google photo album associated with Cruz’s email account. The State’s evidence also
showed other images of Jane that were on the tablet, which were sexually
provocative. Detective Wyatt testified that the tablet had 12 images of Jane that she
considered to be child pornography, although Jane’s genitals were not seen in all the
images. The State’s evidence further showed that Cruz’s iPhone 6 contained digital
images of Amy, including 24 images that Detective Wyatt testified were child
pornography. In some of these images, Amy’s genitals were displayed.
The trial court did not instruct the jury that it must be unanimous regarding
which image satisfied each charged offense of child pornography. The jury charges
included two general, standard instructions that the verdict must be unanimous. But,
in Cosio, the Court of Criminal Appeals concluded that a general unanimity
instruction was not sufficient to prevent a non-unanimous verdict. See 353 S.W.3d
In Cosio, the defendant was convicted of two counts of aggravated sexual
assault of a child and two counts of indecency with a child by contact. Id. at 769–
70. The Court of Criminal Appeals agreed that, because there was evidence of
several instances of sexual misconduct that could have satisfied the charged
offenses, the trial court erred by failing to instruct the jury that it must be unanimous
about which instance of criminal conduct satisfied each offense charged. See id. at
774. The court concluded that “the standard, perfunctory unanimity instruction at
the end of each charge did not rectify the error.” Id.; see Ngo, 175 S.W.3d at 745
(providing that when “the word ‘unanimously’ appeared only in the ‘boilerplate’
section of the jury charge dealing with selection of the jury foreman,” “the jury could
well have believed that they need only be unanimous about their ‘verdict’ of guilty
or not guilty”). The Cosio court explained that the jury “may have believed that it
had to be unanimous about the offenses, not the criminal conduct constituting the
offenses.” Cosio, 353 S.W.3d at 774.
Similarly, the question here is whether, without a specific unanimity
instruction, the State’s evidence permitted the jury to agree that Cruz possessed
images of child pornography but to disagree as to which of the images satisfied the
charges. In other words, could the jury have believed that it had to be unanimous
about the offenses, but not about which images constituted child pornography? See
Even if we assume that the trial court erred by not instructing the jury that it
was required to unanimously agree on which digital image satisfied each charge, we
must still determine whether Cruz was harmed by that error. Because he did not
object at trial to the lack of an unanimity instruction in the jury charges, the jurycharge error was not preserved, and reversal is required only if the error was “so
egregious and created such harm that the defendant was deprived of a fair and
impartial trial.” Villarreal, 453 S.W.3d at 433.
“Egregious harm is a ‘high and difficult standard’ to meet, and such a
determination must be ‘borne out by the trial record.’” Id. (quoting Reeves v. State,
420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). We will not reverse a conviction for
egregious harm unless the defendant has suffered “actual rather than theoretical
harm.” Cosio, 353 S.W.3d at 777. Actual harm is established when the erroneous
jury instruction affected the very basis of the case, deprived the defendant of a
valuable right, or vitally affected a defensive theory. Arrington v. State, 451 S.W.3d
834, 840 (Tex. Crim. App. 2015).
Neither party has the burden to show harm or lack of harm; rather, we must
examine the record and independently determine whether an appellant suffered
actual harm as opposed to theoretical harm. See Marshall, 479 S.W.3d at 843. In
examining the record to determine whether jury-charge error resulted in egregious
harm, we consider four factors: (1) the entire jury charge, (2) the state of the
evidence, including the contested issues and the weight of probative evidence,
(3) the parties’ arguments, and (4) all other relevant information in the record. See
Arrington, 451 S.W.3d at 840; Cosio, 353 S.W.3d at 777.
1. Entire Jury Charge
Here, the jury charges for the child-pornography offenses included only two
generic unanimity instructions. The first related to selecting a jury foreman, and the
second was a general instruction that the verdict must be unanimous. As mentioned,
the Court of Criminal Appeals has determined that such boilerplate instructions do
not rectify the error of failing to give the jury a more specific unanimity instruction.
See Cosio, 353 S.W.3d at 774; Ngo, 175 S.W.3d at 745.
Aside from the general unanimity instructions, the State points out that the
jury was instructed that a defendant cannot be convicted of an offense “unless each
element of the offense is proved beyond a reasonable doubt.” The State also points
out that the application paragraph in “each child-pornography jury charge had an
offense application paragraph that asked jurors whether they found ‘on or about’
March 26, 2017, [Cruz] possessed a digital image depicting a child engaging in lewd
exhibition of the genitals.” (Emphasis in State’s brief, not in jury charge.) The State
asserts that “the application paragraphs of each child-pornography offense
instruction restricted the relevant acceptable image for sufficiency purposes to one
involving ‘lewd exhibition of the genitals.’” It contends that “[t]he unanimity and
beyond-reasonable-doubt instructions together arguably required every juror to be
unanimous as to every element of the offense.”
The State also calls attention to two charge instructions concerning
extraneous-offense instructions—one for offenses against the child complainant
(section 1 of Code of Criminal Procedure article 38.37) and one for offenses against
any child (section 2 of article 38.37). See TEX.CODE CRIM. PROC. art. 38.37, §§ 1(b),
2(b). The section 1 instruction allowed the jury to consider evidence of Cruz’s “other
crimes, wrongs, or acts against the child who is the victim of the alleged offense.”
The section 2 instruction allowed the jury to consider evidence of “alleged offenses
against a child under seventeen years of age, other than the complainant.” The charge
instructed the jury that both types of extraneous-offense evidence could not be
considered unless the jury found, beyond a reasonable doubt, that Cruz had
committed the alleged offenses. Even then, the extraneous offenses could only be
considered “in determining [the evidence’s] bearing on relevant matters,” such as
the relationship between Cruz and “the child,” and Cruz’s and the child’s state of
The State asserts that, “[t]aken together, the offense, application, unanimity,
and extraneous-offense instructions divided the evidence into that which did and did
not fit within the elements of the offense.” But, even taking the State’s assertion as
correct, the charges still permitted non-unanimous verdicts based on the evidence
presented because there were multiple images, such as the three images of Jane’s
genitals depicted in SX 61 and 62, that fit within the elements of the offense. Even
if the charges limited the scope of the evidence that the jury could find satisfied the
elements of the offense, the instructions cited by the State did not prevent the jury
from unanimously agreeing that Cruz committed each charged offense of child
pornography without unanimously agreeing on a single digital image (i.e., unit of
prosecution) for each offense. Thus, while the instructions pointed out by the State
may have had a slight ameliorative effect with respect to the error, this factor
nonetheless weighs in favor of finding egregious harm. See Arrington, 451 S.W.3d
2. State of the Evidence
Under this prong, we consider the state of the evidence to determine whether
the evidence made it more or less likely that the jury charge caused Cruz actual harm.
Id. at 841. As part of this analysis, we determine “the likelihood that the jury would
in fact have reached a non-unanimous verdict on the facts of [this] particular case.”
Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014).
Jane testified that Cruz provided her with the tablet to use. She also testified
that, after they moved to the Houston apartment, Cruz bothered her “a lot” for
photographs of herself and “wouldn’t leave [her] alone.” She stated that Cruz sent
her pictures of “naked women.” He asked her to take pictures of herself posing like
the women in the photos and send the pictures to him. This testimony was
corroborated by messages in Jane’s Instagram account from “daddy” and contained
messages like those Jane described. Jane testified, over time, that she had complied
with Cruz’s requests for nude photos of herself in exchange for candy and being
allowed to use her tablet. Jane used both Cruz’s cell phone and her tablet to take
sexually explicit photographs of herself. In her testimony, she confirmed that, in the
photos, she displayed her breasts, genitals, and buttocks. Amy also testified that she
took nude photographs of herself at Cruz’s request using his cell phone in exchange
The evidence also showed that the Gmail account on the tablet belonged to
Cruz. The Google account associated with the email contained photo albums on
Google’s cloud service, which had images of Jane and Amy. These photographs
included the three photographs where Jane’s genitals are displayed. These were the
same three images of Jane’s genitals that were in the information extracted from the
tablet, as seen in SX 4, and were the same three images contained in the photos taken
by Officer Hasley of the tablet’s screen, as seen in SX 61 and SX 62, and for which
Detective Wyatt provided detailed testimony describing the images. The evidence
also showed that there were other nude photos of both Jane and Amy that Detective
Wyatt testified were child pornography.
However, the State emphasizes that, in its presentation and development of
the evidence and in its closing argument, it focused on the three images of Jane
displaying her genitals in SX 61 and 62 as being the images on which it was
prosecuting Cruz for child pornography. If we focus on these three images, it is
unlikely that the jury would have found that only one or two of the images, rather
than all three, satisfied the elements of the child-pornography charges. See Flores v.
State, 513 S.W.3d 146, 160 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d)
(“From the evidence the jury heard, it is very unlikely that any member of the jury
believed that the second incident took place but that the first did not.”). Thus, we
agree that the harmful effect of no unanimity instruction was decreased by the State’s
emphasis on the three images.
We are mindful, though, that there was still a risk that the jury considered
other images in which Jane and Amy displayed their genitals aside from the three
images emphasized by the State. Even considering that risk, this prong weighs
solidly against a finding of egregious harm. Courts, including the Court of Criminal
Appeals, have concluded that a defendant is not egregiously harmed by a lack of a
specific unanimity instruction when, like here, the defendant’s trial strategy is to
completely deny the commission of any offense. See Cosio, 353 S.W.3d at 777–78
(“The jury was not persuaded that [Cosio] did not commit the offenses or that there
was any reasonable doubt. Had the jury believed otherwise, they would have
acquitted Cosio on all counts. On this record, therefore, it is logical to suppose that
the jury unanimously agreed that Cosio committed all of the separate instances of
criminal conduct during each of the four incidents.”); Smith v. State, 515 S.W.3d
423, 431 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (concluding that, “by
finding appellant guilty of both offenses, the jury necessarily found [complainant]
credible and rejected appellant’s testimony and his defense that he committed no
crime” and holding that appellant was not egregiously harmed by charge error when
only factor weighing in favor of harm was first factor); Rodriguez v. State, 446
S.W.3d 520, 532–33 (Tex. App.—San Antonio 2014, no pet.) (holding evidence
showed no egregious harm when “Rodriguez’s defense, like that in Cosio, was not
that he did not commit these specific alleged incidents, but that he did not commit
any of the alleged acts”).
Here, Cruz engaged in an all-or-nothing trial strategy, asserting that he did not
intentionally or knowingly possess any of the nude photographs of Jane or Amy
admitted into evidence. The basis of Cruz’s defense was to attack the credibility of
the State’s witnesses. Cruz painted Detective Wyatt as being too emotionally
invested in the case, which undermined her investigation and her testimony. But the
primary targets of Cruz’s credibility attacks were Jane and Amy. The defense argued
that it was reasonable to infer that Jane and Amy had lied about Cruz asking them
for nude photos in exchange for items that the girls desired. The defense pointed out
that Cruz had made the children follow rules and schedules and suggested that by
falsely accusing him of child pornography and sexual abuse of Jane, they could get
rid of Cruz. The defense pointed out that Jane and Amy admittedly had taken the
nude pictures of themselves. And the defense argued that other members of the
household had access to the Google account.
In sum, Cruz generally argued that he did not commit any of the alleged childpornography offenses; thus, his defense was “of the same character and strength
across the board.” Cosio, 353 S.W.3d at 777. But the jury rejected this argument and
found Cruz guilty of each offense, suggesting that it found Jane and Amy credible
and that it unanimously believed that Cruz committed all of the separate instances
of possession of child pornography because, otherwise, the jury would have
acquitted him of all the child-pornography charges. See Arrington, 451 S.W.3d at
842 (holding guilty verdicts showed jury “necessarily disbelieved [defendant’s]
defensive evidence” that he never saw complainant naked or had inappropriate
sexual contact with her, noting that if jury had believed defendant rather than
complainant, it would have acquitted him of all charges); Ruiz v. State, 272 S.W.3d
819, 826–27 (Tex. App.—Austin 2008, no pet.) (holding that state of the evidence
weighed against finding egregious harm when defendant did not argue that he was
guilty of only some of complainant’s allegations of abuse, but instead argued that he
had not committed any of the alleged conduct, leaving jury with an “all-or-nothing”
decision). Because the entire record fails to show actual harm to Cruz, this factor
weighs against a finding of egregious harm. See Arrington, 451 S.W.3d at 842.
3. Arguments of the Parties
Under this factor, we look to whether any statements made by the State,
appellant, or the court during the trial exacerbated or ameliorated error in the charge.
Id. at 844. In its closing statement, the State addressed the unanimity requirements
with respect to the offense of continuous sexual abuse of a child. But neither the
parties nor the trial court told the jury that it must be unanimous about the specific
unit of prosecution or image in rendering its verdict in the child-pornography cases;
nor was the jury told that it need not be unanimous in the child-pornography cases.
See Cosio, 353 S.W.3d at 777 (noting that neither parties nor trial court added to
charge error by telling jury that it did not need to be unanimous and, therefore, this
factor did not weigh in favor of finding egregious harm); cf. Ngo, 175 S.W.3d at
750–52 (recognizing that omission of unanimity instruction caused egregious harm
when State and trial court each misstated law concerning unanimity on multiple
occasions). Therefore, this factor weighs neither for nor against finding egregious
4. Other Relevant Information
Finally, we review the record for other relevant information that may require
consideration, such as whether the jury sent requests for clarification during
deliberations. See Smith, 515 S.W.3d at 431. The only note the jury sent to the trial
court was one requesting “all the evidence.” The record reveals no notes or any other
indication that the jury sought any clarification regarding unanimity. See id. Also,
the jury was provided with separate jury charges and verdict forms for each offense
and found Cruz guilty of the three child-pornography offenses. See id. Thus, this
factor does not weigh for or against a finding of egregious harm. See id.
5. Conclusion Regarding Harm
In sum, of the four factors, the only factor that weighs in favor of a finding of
egregious harm is the jury charge itself. The state of the evidence weighs against a
finding of egregious harm; the other two factors weigh neither in favor of nor against
a finding of egregious harm. In both Arrington and Cosio, the Court of Criminal
Appeals found no egregious harm when the erroneous jury charge that permitted a
non-unanimous verdict was the only factor weighing in favor of a finding of harm.
See Arrington, 451 S.W.3d at 845; Cosio, 353 S.W.3d at 777–78. Likewise, after
reviewing the record and considering the required factors, we conclude that any
harm Cruz suffered from the trial court’s failure to instruct the jury that it must be
unanimous regarding which image satisfied each charged offense of child
pornography was theoretical, not actual. We hold that the charge error, if any, did
not egregiously harm Cruz.
We overrule Cruz’s sole issue raised in each child-pornography case.
Continuous Sexual Abuse of a Child
Cruz filed a notice of appeal in the continuous-sexual-abuse-of-a-child case
along with the three child-pornography cases. However, Cruz has not raised an issue
challenging his conviction for the offense of continuous sexual abuse of a child, and
none of his arguments in his sole issue asserting charge error apply to his conviction
for that offense. Although the State’s brief pointed out the lack of any arguments
challenging Cruz’s conviction for continuous sexual abuse of a child, Cruz did not
file a reply brief or otherwise supplement his briefing. Accordingly, we affirm the
trial court’s judgment of conviction for continuous sexual abuse of a child. See
Ingram v. State, 503 S.W.3d 745, 747 (Tex. App.—Fort Worth 2016, pet. ref’d)
(affirming appellant’s conviction for indecency with a child because none of
appellant’s points on appeal raised any argument directed to that conviction and his
points addressed only his conviction for continuous sexual abuse of a child—the
other offense for which he was convicted and had appealed).
Outcome: We affirm the trial court’s four judgments of conviction.