Background
A jury convicted John Michael Gagnon of continuous sexual abuse of a young child, sexual assault of a child, and indecency with a child by contact based on allegations that he repeatedly abused his stepdaughter, S.T. The trial court imposed a fifty-year sentence for continuous sexual abuse and twenty-year sentences for each of the other offenses, ordering all three sentences to run consecutively.
On appeal, Gagnon raised three jury-charge issues. He argued that the charge should have prevented jurors from using the same conduct to convict him of both continuous sexual abuse and the other offenses, and that the charge should have required unanimity about the particular acts supporting the sexual-assault and indecency counts. He also argued that the trial court restricted his offer of proof concerning S.T.’s allegations against another person and improperly admitted testimony from a detective and forensic interviewer as child-outcry evidence.
The Court’s Holding
The Second Court of Appeals affirmed. On the missing limiting instruction, the court assumed without deciding that the charge was erroneous but held that Gagnon had not demonstrated egregious harm. The charge’s dates, the evidence, and the State’s opening and closing arguments distinguished abuse occurring before S.T. turned fourteen from the May 2021 conduct supporting the sexual-assault and indecency counts. Gagnon’s defense was a categorical denial rather than a dispute over when particular acts occurred.
The court held that the trial court did err by omitting incident-specific unanimity instructions for the sexual-assault and indecency counts, but again found no egregious harm. The State consistently relied on the May 2021 incident for those counts, and the jury’s decision turned on whether it believed S.T. or Gagnon’s blanket denial. The appellate court also held that the trial court allowed Gagnon to complete his offer of proof and acted within its discretion in sustaining one relevance objection. Finally, assuming the detective and forensic interviewer were improperly designated as additional outcry witnesses, any error was harmless because S.T. and other witnesses provided the same or similar evidence without objection.
Key Takeaways
- A charge permitting convictions for continuous sexual abuse and related predicate offenses may require an instruction preventing jurors from using the same conduct for both, but an unpreserved omission warrants reversal only upon a showing of egregious harm.
- When evidence describes multiple possible incidents supporting a single charged offense, the jury must be instructed to agree unanimously on one incident; the omission here was erroneous but not egregiously harmful.
- Any error in admitting additional child-outcry testimony was harmless because substantially similar evidence, including the complainant’s own testimony, was admitted without objection.
Why It Matters
The opinion illustrates how Texas courts assess unpreserved jury-charge errors under the demanding egregious-harm standard. Even when a required unanimity instruction is missing, the conviction may stand if the record consistently ties the charged count to a particular incident and the defense disputes whether any abuse occurred rather than which incident supports the verdict.
It also reinforces two evidentiary principles: a defendant must be allowed to make an offer of proof, but relevant limits may still be imposed during that process; and improperly admitted outcry testimony may be harmless when the same facts reach the jury through unchallenged evidence.