concluding that jury charge for offense of credit card abuse that specified in “ ‘boilerplate’ section” of charge dealing with jury-foreperson selection that jury must unanimously agree “upon a verdict” and allowed jury to convict if defendant stole card, received stolen card, or fraudulently presented card was erroneous because it did not inform jury that “it was required to reach a unanimous verdict concerning one specific criminal act” and, accordingly, could have misled jury “into believing that only its ultimate verdict of ‘guilty need be unanimous”
How later courts described this case
- concluding that jury charge for offense of credit card abuse that specified in “ ‘boilerplate’ section” of charge dealing with jury-foreperson selection that jury must unanimously agree “upon a verdict” and allowed jury to convict if defendant stole card, received stolen card, or fraudulently presented card was erroneous because it did not inform jury that “it was required to reach a unanimous verdict concerning one specific criminal act” and, accordingly, could have misled jury “into believing that only its ultimate verdict of ‘guilty need be unanimous”
- finding harm compounded where the prosecutor misstated the law by telling the jury, “[t]he important thing with this is that if three of you . . . feel like he stole the credit card and used it, six of you think that he received it and three of you think he presented it, it doesn’t matter which one you think he did. It can be a mix and match, whichever one you believe.”
- holding that because defendant was charged with three different criminal acts of credit card abuse, jury had to unanimously agree that defendant did at least one of three different things: steal the credit card, knowingly receive the stolen credit card, or fraudulently present stolen credit card with intent to obtain benefit
- holding that omission of unanimity instruction caused egregious harm where, among other things, the prosecutor misadvised jurors that they could mix and match three different acts even though, under the law, each act constituted a separate unit of prosecution of credit card abuse requiring unanimity
Written by the judges who cited it.
Distinguished
Distinguished by James Anthony Davis v. State (2008)
indictment and underlying statute involved in Ngo are distinguishable
Distinguished by Jefferson v. State, 2006 Tex. Crim. App. LEXIS 769 (2006)
In other words, with the focus limited to the September 7, 2001, incident, Ngo is distinguishable because the applicable statute in Ngo defined the three acts involved as separate criminal offenses while the applicable statute here defines the three acts involved as means of committing a single criminal offense.11
The opinion
WOMACK, J.,
concurring in which MEYERS, J., joined.
I join the Court’s opinion with the understanding that its finding of “egregious harm” in this case, like our finding of “some harm” in Francis v. State, 1 is based on more than the mere use of the word “or” in the charge.
Three of the six members of the court who found the error in Francis to be reversible recognized the “strange context” in which it occurred:
a general, one-paragraph indictment that was ill-suited to a multiple-offense trial; an indictment in the conjunctive that could have been in the disjunctive; evidence of multiple offenses, none of which were described by the conjunctive pleading; two denied requests for the State to elect the incident on which it would rely; the State’s incorrect decision to rely on two incidents when it had only pleaded one; and the erroneous decision to authorize the jury to convict *753 for either of two offenses when the indictment pled only one. 2
The charge in this case also was surrounded by errors, as the court’s opinion points out: the prosecutor’s incorrect statement in voir dire that the law does not require a unanimous verdict, the trial court’s making a statement to the same effect in voir dire, and the prosecutor’s reiteration of the wrong law in argument. 3
It could be said of both Francis and this case that, by failing to cure the cumulative effect of a series of missteps, the courts’ charges contained the ultimate step that make “it appear[ ] from the record that the defendant has not had a fair an impartial trial” within the meaning of Article 36.19.
. 36 S.W.3d 121 (Tex.Cr.App.2000).
. See id., 125 , at 127 (concurring opinion).
. See ante, at Part II. B.