Background
A jury convicted Michael Jones of continuous sexual abuse of a young child, aggravated sexual assault of a child, and indecency with a child. The charges involved two victims: A.W., the daughter of Jones’s former partner, and S.N., A.W.’s friend, who frequently stayed overnight at the home. Jones received prison terms of thirty-seven years, ten years, and four years, respectively, to run consecutively.
On appeal, Jones argued that the trial court failed to ensure that bench conferences were recorded despite granting his pretrial motion requesting their transcription; that the record did not show the prospective jurors were properly qualified; and that the jury charges permitted nonunanimous verdicts on the aggravated-sexual-assault and indecency offenses.
The Court’s Holding
The Thirteenth Court of Appeals affirmed. It held that Jones failed to preserve his complaint about the unrecorded bench conferences because he did not object when the court reporter failed to record them. It also rejected his jury-qualification challenge because an appellate court presumes the jury was properly impaneled unless the record affirmatively shows otherwise, and the record’s silence about whether qualification occurred off the record did not overcome that presumption.
The court found no unanimity error in the aggravated-sexual-assault charge because the evidence identified only one discrete incident in which Jones’s mouth contacted S.N.’s sexual organ. As to indecency by exposure, the court assumed without deciding that a more specific unanimity instruction was required but held that the omission did not cause egregious harm. Jones presented an all-or-nothing fabrication defense, and neither the evidence nor the parties’ arguments meaningfully distinguished among the alleged exposure incidents, leaving no actual, significant risk of a nonunanimous verdict.
Key Takeaways
- A pretrial order requiring bench conferences to be recorded does not preserve an appellate complaint when defense counsel fails to object to unrecorded conferences during trial.
- A silent record does not rebut the presumption that prospective jurors were properly qualified and the jury properly impaneled.
- When evidence supports only one discrete incident constituting the charged offense, a general unanimity instruction does not permit jurors to choose among multiple units of prosecution.
- An unpreserved omission of an incident-specific unanimity instruction warrants reversal only upon egregious harm, not a merely theoretical possibility of juror disagreement.
Why It Matters
The decision underscores the importance of contemporaneous objections even when a trial court has already granted a pretrial motion. Counsel must object when a reporting failure occurs to preserve the issue for appeal.
It also illustrates how Texas courts evaluate unanimity challenges in child-sex-abuse cases involving repeated conduct. The inquiry turns on whether the evidence presented multiple distinguishable criminal incidents and, for unpreserved error, whether the entire record shows an actual risk that jurors relied on different incidents to convict.