Jourdan v. State No. PD-0446-13

Price, J., delivered the opinion for a unanimous Court.

While she was leaving her job as a custodian at a public library, Crystal Kemp discovered she locked her keys in her car. While she was on the phone with a relative, Appellant approached her and offered his assistance. After asking her to get him paper towels, Appellant allegedly followed Kemp into the library’s bathroom, where he allegedly sexually assaulted her. Appellant claimed that when he approached Kemp’ her relative convinced her to offer $50 and oral sex in exchange for his help retrieving the keys. Appellant further contended he entered an adjacent storage facility where he ejaculated on Kemp’s shirt before she could perform the agreed upon conduct. Believing Kemp did not intend to pay him the $50, Appellant claimed he became angry, following Kemp into the library bathroom and beating her. Though Appellant claimed he only ejaculated on Kemp’s shirt in the storage facility, a medical expert claimed he discovered Appellant’s seminal fluid on Kemp’s groin region. At trial, during his closing argument, the prosecutor put particular emphasis on Appellant’s statements that he ejaculated on Kemp’s shirt, which contradicted medical testimony that the fluids were found around her groin.

Appellant was charged with three counts of aggravated sexual assault. The charges respectively alleged Appellant (1) caused Crystal “Kemp’s female sexual organ to contact his own sexual organ . . . (2) caus[ed] penetration of Kemp’s female sexual organ with his own sexual organ . . . ; and (3) caus[ed] penetration of Kemp’s female sexual organ with the appellant’s finger. . . .” Rather than outlining separate applications—one for contact or penetration with the finger, and one for contact or penetration with Appellant’s sexual organ—as the prosecutor outlined during voir dire, the court presented the jury with one application paragraph, instructing the jury that if they found that Appellant caused contact or penetration with his finger or his sexual organ, the jury should find him guilty of aggravated sexual assault. “This application paragraph [did] not expressly require the jury, as a predicate to convicting the appellant, to reach agreement with respect to whether he: (1) contacted Kemp’s sexual organ with his own sexual organ . . . ; (2) penetrated Kemp’s sexual organ with his own sexual organ . . . ; or (3) penetrated Kemp’s sexual organ with his finger. . . .”

On appeal, Appellant argued the jury instruction was improper because, rather than alleging alternative means of committing the same offense, it alleged two separate offenses: contact or penetration with his sexual organ and contact or penetration with his finger. Holding for Appellant, the court of appeals found “that the indictment alleged two separate statutorily defined offenses, and held that the jury should have been required to achieve unanimity with respect to at least one of those offenses before convicting,” which caused Appellant egregious harm.

The Court of Criminal Appeals granted discretionary review to address two grounds, upon which, the State claimed the court of appeals erred: that the indictment did not allege separate statutorily defined offenses, and that the court erred in placing such great emphasis on prosecutor’s closing argument.

The Court first noted the core principle of jury unanimity, noting however, that it is not improper to present a jury with alternative methods or means of committing an offense. Reviewing the case, the Court identified three potential jury unanimity problems wherein the jury could have convicted Appellant without determining whether (1) he “contacted Kemp’s sexual organ with his own sexual organ versus penetrated her sexual organ with his own;” (2) he “penetrated Kemp’s sexual organ with his own sexual organ versus penetrated her sexual organ with his finger;” or (3) he “contacted Kemp’s sexual organ with his own sexual organ versus penetrated her sexual organ with his finger.” Because Appellant only raised the second situation on appeal, the Court addressed that issue first.

In applying the “eighth-grade grammar” test to Tex. Penal Code § 22.021(a)(1)(A)(i), the Court found that the statute does not differentiate which type of object a defendant uses to cause penetration, rather, the statute addresses “penetration” perpetrated “by any means.” Thus, whether Appellant caused penetration with his finger or penis simply provides alternative means of violating the same statute. Finding the statute does not indicate a legislative intent to focus on a particular means of penetration, the Court held that the jury did not have to achieve uniformity in determining the means by which Appellant penetrated Kemp’s sexual organ.

The court next addressed the distinction between contact and penetration. Though there is a distinct statutory difference in contact and penetration, even if Appellant had raised the issue before the court of appeals, the Court found that in order to have penetration, there must first be contact. Thus, there is no lack of jury uniformity because the jury found that Appellant at least contacted Kemp’s sexual organ. Similarly, regarding the distinction between penile and digital penetration, the Court noted that even if Appellant had raised the issue on appeal, the error in distinction was an egregious error.

Accordingly, the Court reversed the court of appeals’ judgment, affirming the trial court’s conviction.