John Michael Gagnon v. the State of Texas

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00290-CR ___________________________ JOHN MICHAEL GAGNON, Appellant V. THE STATE OF TEXAS On Appeal from the 43rd District Court Parker County, Texas Trial Court No. CR21-0961 Before Sudderth, C.J.; Womack and Walker, JJ. Memorandum Opinion by Justice Womack  MEMORANDUM OPINION I. INTRODUCTION A jury convicted Appellant John Michael Gagnon of continuous sexual abuse of a young child (CSA), sexual assault of a child, and indecency with a child by contact. The trial court sentenced Gagnon to fifty years’ confinement on the CSA count and to twenty years’ confinement on each of the other counts, with the sentences to be served consecutively. Gagnon raises five issues on appeal. In the first three, Gagnon complains about alleged jury charge errors. In the final two, he complains that the trial court erroneously prevented him from making an offer of proof concerning certain testimony and also abused its discretion by admitting hearsay evidence during trial. We will affirm. II. BACKGROUND Gagnon has not raised a sufficiency challenge, so we need only summarize the pertinent trial testimony. A. S.T.’s1 Testimony Gagnon was S.T.’s stepfather, and he came into her life when she was five or six years old. She described her childhood as “[v]ery rough”; she, her mother, her 1 We use initials to protect the child’s privacy. See Tex. R. App. P. 9.10(a)(3); Cisnerosmartinez v. State, No. 02-24-00144-CR, 2025 WL 1840568, at *1 n.2 (Tex. App.—Fort Worth July 3, 2025, pet. ref’d) (mem. op., not designated for publication). 2 siblings, and Gagnon frequently lived in hotels and duplexes. S.T. testified about Gagnon’s years of sexually abusing her. She said that when she was around six years old, Gagnon had touched her in the bathroom. She was naked, and he placed her on the bathroom counter to “kiss and touch” her. She said that he had kissed her on her “lips, neck, and chest” and had touched her on her “chest and vagina.” She could not recall all of the details and described it as a painful memory that she had tried to block out. S.T. could not recall the exact number of times he had touched her inappropriately, but she said that it had happened “[d]efinitely more than three” times. When she was thirteen, S.T. and Gagnon were often alone together on the weekends when her mother was working and her siblings were not home. She testified that he had forced her to take her clothes off, had touched her breasts and vagina with his hands, had put his fingers and penis inside her vagina, and had “force[d her] to have sex with him.” She described Gagnon’s abusing her “[a] couple of times a month” and “more than ten” times, including before and after she turned fourteen in December 2020. Gagnon had threatened to harm S.T. and her family if she told anyone. S.T. testified that on one occasion, Gagnon had tried to force her to perform oral sex on him, but she had refused and moved her head out of the way. According to S.T., the last incident of abuse was in May 2021—after she had turned fourteen— which she said had occurred “a couple of days to a couple of weeks” before she told 3 her mother about all the abuse. S.T. confirmed that during that May 2021 incident, Gagnon placed his fingers and penis inside her vagina. B. S.T.’s Mother’s Testimony S.T.’s mother testified that in June 2021, S.T. had told her that Gagnon had “[b]een touching her places that shouldn’t have been done” and “forcing her to do sex.” The day S.T. told her mother, her mother confronted Gagnon about why he had touched S.T. and why he had hurt her, and he responded, “I must be sick.” S.T.’s mother reported Gagnon to the police, who began investigating him. C. Christian Beniak’s Testimony In June 2021, Christian Beniak worked for the Weatherford Police Department. He testified that after he was made aware of S.T.’s reporting of Gagnon’s abuse, he set up a forensic interview and remotely observed it. He testified that he had heard what S.T. had told the interviewer about Gagnon, including that Gagnon had penetrated S.T. with his finger and had committed two or more sex acts over a period of thirty days. D. Annbra Johnson’s Testimony Annbra Johnson formerly worked as a police officer with the Weatherford Police Department, and she testified that she had been dispatched in response to S.T.’s mother’s June 2021 911 call. Johnson described responding, interviewing S.T. and her mother at the scene, and being told that Gagnon “had been forcing himself on [S.T.] for quite some time,” with “the last incident happen[ing] the month prior.” 4 Johnson described bringing S.T. and her mother to the police department where the police interviewed S.T. According to Johnson, S.T. told her that beginning when school had started in 2020, Gagnon had inserted his penis and fingers inside her vagina and that this had occurred “around ten times.” The last time had been about a month before—which would have been May 2021. S.T. had also told Johnson that the day before the interview, Gagnon had tried to touch her private parts over her clothes while in the car, and she had “scooted toward[] . . . the door of the car to get him to stop.” E. Brittany Lain’s Testimony Brittany Lain was the forensic interviewer at the Children’s Advocacy Center of Parker County, and she interviewed S.T. after the police interview. Lain testified that S.T. told her that Gagnon’s sexual abuse had begun in 2020 about a month into her eighth grade year when S.T. was thirteen. Lain described Gagnon’s sexual abuse of S.T. F. Morgan Walden’s Testimony Morgan Walden testified that she considered S.T. to be like family and that S.T. had been living with her since July 2024. Walden said that S.T. had told her about having a flashback of Gagnon’s touching her inappropriately as she was about to take a shower when she was six years old. 5 G. Theresa Fugate’s Testimony Theresa Fugate is a sexual assault nurse examiner, who works at Cook Children’s Hospital. She testified about her assessment, examination, and treatment of S.T. According to Fugate, S.T. told her that Gagnon had been sexually abusing her “for like a year,” had last abused her in May 2021, and had abused her in varying ways, including vaginal and anal contact with Gagnon’s penis and hands. III. DISCUSSION A. Complaints Regarding Alleged Jury Charge Errors Gagnon’s first three issues concern alleged errors in the jury charge. 1. Standard of Review “[T]he jury is the exclusive judge of the facts” but is bound to and governed by the law that the trial court provides in its written charge to the jury. Alcoser v. State, 663 S.W.3d 160, 164 (Tex. Crim. App. 2022) (citing Tex. Code Crim. Proc. arts. 36.13, 36.14). The court’s charge “inform[s] the jury of the applicable law and how to apply it to the facts of the case,” id. at 164–65, and must “set out all the essential elements of the offense,” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). Typically, the court’s charge contains abstract and application paragraphs. Alcoser, 663 S.W.3d at 165; Vasquez, 389 S.W.3d at 366–67. “The abstract paragraphs serve as a glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs.” Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). The application paragraphs “explain[] to the jury, in concrete 6 terms, how to apply the law to the facts of the case,” Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App. 2013), and are “‘the heart and soul’ of the jury charge,” Vasquez, 389 S.W.3d at 367. In examining a charge for possible error, we “must examine the charge as a whole instead of a series of isolated and unrelated statements.” Vasquez, 389 S.W.3d at 367 (quoting Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995)). If a defendant complains on appeal about an erroneous instruction in the charge (or about the lack of a proper instruction) regarding an area of law that is considered the law applicable to the case, whether the defendant objected to the trial court determines the applicable standard for assessing harm. See Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). If a proper objection was made to the trial court regarding an error in the jury charge, a reviewing court determines whether the error caused the defendant some harm. Almanza, 686 S.W.2d at 171. If no objection was made to the trial court, a reviewing court determines whether the error caused the defendant egregious harm. Nava, 415 S.W.3d at 298; Almanza, 686 S.W.2d at 171. Egregious harm is a “high and difficult standard” to meet, and a determination that such has occurred must be “borne out by the trial record.” Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). The analysis for egregious harm is fact specific and is done on a “case-by-case basis.” Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013). Errors that result in egregious harm are those “that affect the 7 very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive.” Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011). We consider the following factors in evaluating egregious harm: (1) the entire jury charge; (2) the state of the evidence, including the contested issues and weight of probative evidence; (3) the argument of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. “An egregious harm determination must be based on a finding of actual rather than theoretical harm.” Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). 2. Complaint that the Trial Court Failed to Include a Limiting Instruction In his first issue, Gagnon asserts that the trial court’s “charge failed to instruct the jurors that they could not use an offense that satisfied the criteria for [CSA] to convict for” the other two counts. Gagnon thus claims that “the jury could have found [that he] penetrated [S.T.’s] sexual organ when she was 13 years old” and then used that same conduct to convict him of both the CSA and the sexual assault offense, resulting in punishing him twice for the same act. He argues that “all acts that occurred before [S.T.’s] fourteenth birthday[—December 9, 2020—]had to be grouped in the continuous count and all acts after her fourteenth birthday had to be for the later offenses.” Gagnon complains that the failure to instruct the jury accordingly—which he did not raise in the trial court—resulted in egregious harm. 8 Assuming but without deciding that the trial court erred by not including a limiting instruction, we conclude that Gagnon has not shown egregious harm. a. Assumed Error Gagnon does not specifically cite Texas Penal Code Section 21.02(e)(2), but it forms the core of his complaint. See Tex. Penal Code § 21.02(e)(2). For purposes of the CSA statute, [a] defendant may not be convicted in the same criminal action of an offense listed under Subsection (c) the victim of which is the same victim as a victim of the offense alleged under Subsection (b) unless the offense listed in Subsection (c) . . . occurred outside the period in which the offense alleged under Subsection (b) was committed. Id. More plainly, a defendant cannot be found guilty of both CSA and the predicate acts of sexual abuse that the jury used for its CSA finding. See id.; Stephenson v. State, 673 S.W.3d 370, 389 (Tex. App.—Fort Worth 2023, pet. ref’d) (discussing Allen v. State, 620 S.W.3d 915, 919–22 (Tex. Crim. App. 2021)). A defendant may only be convicted of both CSA “and one of the predicate offenses listed as an independent offense if the independent offense occurred after the victim turned fourteen years old.”2 Johnson v. State, No. 05-24-01315-CR, 2025 WL 3619386, at *8 (Tex. App.— 2 The State cites Section 21.02(e)(2) in passing but offers no discussion of the statutory text. The State mainly relies on Beltran De La Torre v. State to argue that the trial court properly avoided providing a non-statutory instruction that would have constituted an improper comment on the weight of the evidence. 583 S.W.3d 613, 617 (Tex. Crim. App. 2019). But the State fails to explain how that decision— pertaining to non-statutory instructions—would impact the potential need for a limiting instruction under Section 21.02(e)(2) informing the jury that the CSA statute prohibits a person’s being convicted of both CSA and a predicate offense unless the 9 Dallas Dec. 12, 2025, no pet.) (mem. op., not designated for publication) (quoting Carbajal v. State, 659 S.W.3d 164, 184 (Tex. App.—El Paso 2022, pet. ref’d)); see also Allen, 915 S.W.3d at 919 (stating that Section 21.02(e)(2) prohibits a defendant’s additional conviction for a predicate offense when that offense occurred inside the period in which the CSA offense was committed). In this case, the State charged Gagnon in Count One with CSA, which applied when S.T. was under fourteen, see Tex. Penal Code § 21.02(b)(2)(A), and in Counts Two and Three with sexual assault of a child and indecency with a child by contact, which applied when S.T. was under seventeen, see id. §§ 21.11(a), 22.011(a)(2)(A), (c)(1). One of the underlying offenses in the CSA count was Gagnon’s “intentionally or knowingly contacting or penetrating” S.T.’s sexual organ before she turned fourteen, and the sexual assault count was premised on Gagnon’s “intentionally or knowingly causing the sexual organ of [Gagnon] to contact or penetrate” the sexual organ of S.T., “a child who was then and there younger than 17 years of age.” Similarly, the State charged Gagnon with indecency by contact in Count Three and also used indecency by contact—other than by touching the breast of a child—as a CSA predicate offense. When the trial court charged the jury, it did so in conformity with the conduct charged in the indictment. The jury charge included “on or about” language predicate offense occurred outside the period used for the CSA conviction. See Tex. Penal Code § 21.02(e)(2). 10 concerning both offenses, asking the jury to consider that the CSA offense occurred “on or about between September 1, 2020[,] and December 8, 2020,” and that the sexual assault and indecency offenses occurred “on or about May 16, 2021.” But the State was not required to prove that the offenses were committed on those exact dates. See Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997); Zimmerer v. State, No. 02-22-00180-CR, 2023 WL 6152466, at *7 (Tex. App.—Fort Worth Sept. 21, 2023, pet. ref’d) (mem. op., not designated for publication). Thus, the State could have sought to obtain convictions on Counts Two and Three based on Gagnon’s conduct against S.T. when she was under fourteen so long as it did not simultaneously obtain a CSA conviction using the same predicate conduct. See Tex. Penal Code § 21.02(e)(2). Or the State could have sought to obtain convictions for both (1) CSA based on Gagnon’s pre-December 9, 2020 acts of abuse and (2) the independent offenses constituting sexual assault and indecency by contact based on conduct occurring on or after that date. See id. Despite the potential for overlap, the court’s charge did not instruct the jury under Section 21.02(e)(2) that it could not convict Gagnon on the sexual assault or indecency by contact offenses based on its finding that Gagnon had committed either offense against S.T. before she had turned fourteen while also finding that he had committed CSA. Without any limiting instruction consistent with Section 21.02(e)(2), it was theoretically possible for the jury to have found an under-fourteen sexual assault or indecency offense and to have impermissibly used that finding to convict 11 Gagnon on both the CSA count and the other two counts. We assume without deciding that it was error for the trial court to not have included a Section 21.02(e)(2) limiting instruction in the charge and address whether Gagnon has shown egregious harm. See, e.g., Johnson, 2025 WL 3619386, at *8–9 (addressing harm after the State “assumed without conceding” that the trial court should have instructed the jury under Section 21.02(e)(2)). b. No Egregious Harm Based on Almanza’s above-cited factors, we conclude that the assumed charge error was not egregiously harmful. 686 S.W.2d at 171. i. Jury Charge as a Whole Concerning the entire charge, see id., other than the lack of Section 21.02(e)(2) limiting language, the court’s charge correctly laid out the law regarding the elements of the three charged offenses. The court’s charge also attempted—through on or about language in the application paragraphs—to tie pre-December 9, 2020 conduct to the CSA offense and May 16, 2021 conduct to the sexual assault and indecency offenses. Although the on or about language was insufficient on its own to provide a limiting instruction under Section 21.02(e)(2), such language is nonetheless important to our analysis under Almanza because given the state of the evidence, the arguments of counsel, and the opening statements, the on or about language reduced the risk that the jury considered pre-December 9, 2020 conduct for all three offenses. See, e.g., Kuhn v. State, 393 S.W.3d 519, 530 (Tex. App.—Austin 2013, pet. ref’d) (explaining 12 that the charge’s on or about language reduced the risk that the jury would use certain uncharged abusive acts predating the CSA statute to convict the appellant). ii. State of the Evidence As for the state of the evidence, see Almanza, 686 S.W.2d at 171, during trial, S.T. testified to her birthday. She described the sexual acts that Gagnon committed against her between September 2020 and her birthday and from when she was six years old, which supported the CSA conviction. Additionally, she specifically described Gagnon’s May 2021 conduct, after she had turned fourteen, which supported the sexual assault and indecency convictions. During cross-examination, Gagnon’s attorney attempted to call into question S.T.’s memory and credibility. Because Gagnon’s credibility, not the timeline of Gagnon’s abuse, “was the central issue at trial, the outcome would not likely have been different” even if the trial court had given the Section 21.02(e)(2) limiting instruction.3 See Poor v. State, 715 S.W.3d 15, 35 (Tex. App.—Eastland 2024, pet. ref’d) (citing Alcoser, 663 S.W.3d at 170); see also Ramirez v. State, No. 02-18-00131-CR, 2019 WL 238123, at *7 (Tex. App.—Fort Worth Jan. 17, 2019, pet. ref’d) (mem. op., not designated for publication) (stating that the fact that the timing of the sexual acts was not heavily contested during trial 3 Although Gagnon has not raised any sufficiency challenge, S.T.’s testimony, standing alone, was sufficient proof of the offenses she testified that Gagnon had committed. See Cisnerosmartinez, 2025 WL 1840568, at *1. 13 and therefore did not vitally affect a defensive theory weighed against a finding of egregious harm). iii. Arguments of Counsel We turn to the arguments of counsel. See Almanza, 686 S.W.2d at 171. During its closing argument, the State specifically delineated the evidence before and after S.T. had turned fourteen. It argued that the evidence it relied on for Count One was everything before December 9, 2020. The State reminded the jury of S.T.’s testimony about the abuse beginning in September 2020 and her testifying “multiple times that it happened over and over, the same thing, was vaginal penetration.” Concerning Counts Two and Three, the State specifically reminded the jury of S.T.’s testimony about Gagnon’s May 2021 misconduct. The State argued that it had proven that “[s]he’s 14 to 17” and contended that the jury should find Gagnon guilty on Counts Two and Three. In response, Gagnon’s closing arguments did not focus on whether S.T. was over fourteen or whether the May 2021 abuse really occurred then versus before she was fourteen. Instead, his lawyers argued that S.T. could not be believed and argued that Gagnon should be found not guilty of all three charges. The bottom line is that the State used its arguments to place the abuse within the proper time frame, and Gagnon argued he was innocent of everything. The closing arguments thus weighed against egregious harm. See Gomez v. State, 459 S.W.3d 651, 663 (Tex. App.—Tyler 2015, pet. ref’d) (stating that the prosecutor’s 14 efforts to distinguish between charged acts (within the statutory period) and uncharged acts (before the statute’s effective date), combined with multiple correct statements of the applicable time frame, weighed against egregious harm); see also Ramirez, 2019 WL 238123, at *7. iv. Other Relevant Information We may consider any relevant information revealed by the record as a whole, and in this case, we consider the parties’ opening statements. See Almanza, 686 S.W.2d at 171. During the State’s opening statement, it explained to the jury that S.T.’s age was critical to the jury’s consideration of the evidence. The State pointed out that S.T. had to be under fourteen for the CSA offense, that she was “13 when the abuse start[ed], and at some point she does turn 14. So that’s why the age factor for [CSA] is important because her age will change as the abuse goes on.” The State then pointed out the relevancy of S.T.’s age for both the sexual assault and indecency offenses and pointed to the on or about May 16, 2021 language in the indictment: “And again, . . . that’s when she’s 14 to 17 years old.” The defense’s opening statement revealed Gagnon’s intent to deny committing any of the charged offenses, challenging everyone’s credibility, framing the facts as being “wildly implausible,” and claiming that Gagnon was the “victim of [S.T.] and her stories.” Thus, from the parties’ opening statements through their closing arguments, the jury was repeatedly made aware of the relevant time period. See Ramirez, 2019 WL 238123, at *8; Kuhn, 393 S.W.3d at 531. 15  v. Balancing Almanza’s Factors Considering Almanza’s factors in their totality, we cannot conclude that the trial court’s failure to give a Section 21.02(e)(2) limiting instruction in the jury charge affected the very basis of the case and deprived Gagnon of a fair and impartial trial. See Kuhn, 393 S.W.3d at 531. The State’s entire case was framed around S.T.’s age and what she said happened before and after she turned fourteen, and Gagnon’s all-or- nothing guilt–innocence defensive strategy never called into question the State’s framing; rather, he denied it all. Under these circumstances, Gagnon has not shown egregious harm. See Cosio, 353 S.W.3d at 777 (stating that an appellant must demonstrate “actual rather than theoretical harm”); Machado v. State, No. 02-15-00365- CR, 2016 WL 3962731, at *3 (Tex. App.—Fort Worth July 21, 2016, pet. ref’d) (mem. op., not designated for publication) (explaining that “the record contains evidentiary puzzle pieces that the jury could have carefully fit together”). We therefore overrule Gagnon’s first issue. 3. Complaints that the Trial Court Erred by Omitting Unanimity Instructions In his second and third issues, Gagnon argues that the trial court erred by not sua sponte instructing the jury that it was required to be unanimous on the particular act that had occurred to find him guilty on Counts Two and Three. We agree that the trial court erred, but we disagree that Gagnon has shown egregious harm from this unobjected-to error. 16  a. Error The trial court erred by not ensuring unanimity in the verdicts of Counts Two and Three. As we have explained: The trial court has a responsibility to instruct the jury on the law applicable to the case and to submit a charge that does not allow for the possibility of a nonunanimous verdict. . . . See Cosio . . . , 353 S.W.3d [at] 776 . . . . Nonunanimity may occur when the State charges a defendant with one offense and presents evidence that he committed the charged offense on multiple but separate occasions. Id. at 772. To ensure unanimity in this context, the 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. Id. Manrrique v. State, No. 02-19-00458-CR, 2021 WL 4205011, at *11 (Tex. App.—Fort Worth Sept. 16, 2021, no pet.) (mem. op., not designated for publication) (internal quotation omitted). As in Manrrique, the jury charge did not require the jury to unanimously agree that Gagnon committed any single criminal act regarding the sexual assault and indecency by contact counts.4 See id. We therefore hold that the 4 We reject the State’s argument that the jury could simply infer that its conduct findings supporting Counts Two and Three needed to be unanimous based off the charge’s instructions in the CSA count that (1) it was “not required to agree unanimously on which specific acts of sexual abuse” were committed in furtherance of the CSA offense and (2) it “must simply agree unanimously that [Gagnon], during a period that was 30 or more days in duration, committed two or more acts of sexual abuse.” Although the charge contained a general instruction about “reach[ing] a unanimous verdict,” the nonunanimity instruction concerning the CSA offense provided no specific guidance to the jury about whether it needed to be unanimous concerning the conduct underlying the sexual assault and indecency by contact offenses. Cosio held that “the jury must be instructed” and did not countenance instruction by inference, which the State contends occurred. 353 S.W.3d at 773. Moreover, the Court in Cosio stated that a “standard, perfunctory unanimity 17 trial court erred by not specifically instructing the jury concerning unanimity on Counts Two and Three. See id. (first citing Arrington v. State, 451 S.W.3d 834, 841 (Tex. Crim. App. 2015); and then citing Cosio, 353 S.W.3d at 776); see also Peralez v. State, No. 02-23-00218-CR, 2024 WL 1792403, at *6 (Tex. App.—Fort Worth Apr. 25, 2024, pet. ref’d) (mem. op., not designated for publication) (following Manrrique and concluding that the trial court’s failure to include a unanimity instruction was error), cert. denied, 145 S. Ct. 1192 (2025). b. No Egregious Harm Gagnon did not object to the missing unanimity instructions concerning Counts Two and Three. Accordingly, we apply Almanza’s egregious harm standard to this charge error. 686 S.W.2d at 171. Considering the relevant factors, we conclude that he has not shown egregious harm. See id. i. Jury Charge as a Whole Concerning the entire charge, see Almanza, 686 S.W.2d at 171, the CSA offense’s instructions provided as follows: Regarding Count I, you are instructed that the jury is not required to agree unanimously on which specific acts of sexual abuse, if any, were committed by the Defendant or the exact date when those acts were instruction” only informs the jury of the requirement about being unanimous about the offense, but “not the criminal conduct constituting the offenses.” Id. at 774. So the charge’s general unanimity instruction was insufficient to ensure unanimity on the sexual assault and indecency by contact counts. See Braggs v. State, No. 02-23-00166- CR, 2024 WL 1451984, at *9–10 (Tex. App.—Fort Worth Apr. 4, 2024, pet. ref’d) (mem. op., not designated for publication). 18  committed, if any. The jury must simply agree unanimously that the Defendant, during a period that was 30 or more days in duration, committed two or more acts of sexual abuse as that term is defined herein. As we have discussed, unanimity language was omitted from the charge’s instructions on Counts Two and Three. Then, the charge’s general instructions mentioned unanimity twice. First, the charge instructed, After retiring to the jury room, you should select one of your members as your presiding juror. It is the duty of the presiding juror to preside at your deliberations, vote with you, and, when you unanimously agree upon a verdict, to certify to your verdict by using the appropriate form attached hereto, and signing the same as presiding juror. Second, the charge instructed, “After you reach a unanimous verdict, the presiding juror will certify thereto by filling in the appropriate form attached to this charge and signing same as presiding juror.” We addressed this same scenario in Braggs and concluded that the charge’s language weighed in favor of egregious harm. 2024 WL 1451984, at *10–11. Although the charge in this case is not as flawed as the one in Braggs, we are nonetheless persuaded that this factor tips in favor of egregious harm. See id.; see also Flores v. State, 513 S.W.3d 146, 158 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). ii. State of the Evidence Concerning the evidence, see Almanza, 686 S.W.2d at 171, as we have discussed above, although S.T. generally testified about Gagnon’s abuse, regarding Counts Two 19 and Three, the State focused on the May 2021 conduct. Other than Officer Johnson’s testimony about a June 2021 situation in which Gagnon had tried to touch S.T.’s private parts over her clothes while in the car and she had “scooted toward[] . . . the door of the car to get him to stop,” no witnesses testified to any specific conduct after she turned fourteen—other than the May 2021 conduct. Because the State focused on presenting evidence of that incident, it would have been clear to both Gagnon and the jury that the State was relying on the May 2021 conduct, and only that day’s conduct, to convict him on Counts Two and Three. See Demps v. State, 278 S.W.3d 62, 69 (Tex. App.—Amarillo 2009, pet. ref’d) (stating that evidence relating to a particular date “was clearly sufficient, beyond a reasonable doubt, in and of itself to support a finding of guilt, and was certainly the act relied upon by the State to support the conviction”). Further, as in Braggs, the parties’ evidence—and Gagnon’s defensive theory— presented the jury with an all-or-nothing, he-said-she-said determination. See 2024 WL 1451984, at *12. Gagnon attacked S.T.’s credibility and denied that any sexual conduct had occurred. He did not take aim at the alleged May 2021 conduct any more than he took aim at S.T.’s other allegations of abuse. Cf. id. (“[Appellant] did not take aim at [the victim’s] allegations of breast-touching any more than he took aim at her other allegations of sexual abuse.”). The jury’s verdict reflects that it rejected Gagnon’s categorical denials, believed S.T.’s testimony, and carefully ascertained what criminal offenses had occurred based upon the evidence presented. 20 See id.; see also Peralez, 2024 WL 1792403, at *7 (“[W]here a complainant testifies about several instances of similar abuse and a defendant maintains that none of the instances occurred[, ]there is little risk of a nonunanimous verdict.”); Wesley v. State, No. 06-20- 00098-CR, 2021 WL 5931677, at *3 (Tex. App.—Texarkana Dec. 16, 2021, no pet.) (mem. op., not designated for publication) (holding that the state of the evidence weighed against egregious harm when the charge permitted a nonunanimous verdict due to evidence of multiple breast-touching incidents but “the jury was faced with a ‘he-said-she-said’ situation” and had “clearly rejected” the defendant’s defensive theory “by finding [him] guilty of indecency”). Accordingly, the state of the evidence shows a lack of actual—much less egregious—harm. See Braggs, 2024 WL 1451984, at *12. iii. Arguments of Counsel Next, we examine the arguments of counsel. See Almanza, 686 S.W.2d at 171. During closing arguments, the State explained the CSA’s unanimity instructions briefly but otherwise made no arguments about unanimity concerning Counts Two and Three. Gagnon said nothing about unanimity. Because “neither party exacerbated or ameliorated the incident-unanimity error, this factor is neutral.” Braggs, 2024 WL 1451984, at *11; see Arrington, 451 S.W.3d at 844 (treating factor as neutral when arguments of counsel neither contributed to nor ameliorated error in the charge); Peralez, 2024 WL 1792403, at *8. 21  iv. Other Information From the indictment through closing argument, the State consistently pointed only to the May 2021 conduct for Counts Two and Three: the State used on or about May 16, 2021 language in the indictment, referenced that date in its opening statements, presented evidence about the May conduct, and summed up that evidence during its closing argument all to link the May 2021 conduct to Counts Two and Three. This factor weighs against a finding of egregious harm. See Ramirez, 2019 WL 238123, at *8; Gomez, 459 S.W.3d at 663; Kuhn, 393 S.W.3d at 531. v. Balancing Almanza’s Factors Considering Almanza’s factors in their totality, we cannot conclude that the trial court’s failure to give the requisite unanimity instructions concerning Counts Two and Three resulted in actual, egregious harm to him. By finding Gagnon guilty, the jury necessarily believed the State’s evidence about the May 2021 conduct and rejected Gagnon’s categorical denial. See Braggs, 2024 WL 1451984, at *12; Kuhn, 393 S.W.3d at 531. “Overall, then, the record indicates that the omitted incident-unanimity instruction did not cause actual harm that affected the very basis of the case, deprived [Gagnon] of a valuable right, or vitally affected a defensive theory.” Braggs, 2024 WL 1451984, at *12 (citation modified); see Peralez, 2024 WL 1792403, at *8. We therefore overrule Gagnon’s second and third issues. 22 B. Complaint that the Trial Court Prevented Gagnon from Making an Offer of Proof In his fourth issue, Gagnon contends that the trial court improperly denied his “ability to make offers of proof concerning [S.T.’s] family relationships and how those related to other claims of sexual assault.” Gagnon has not shown error on this issue. Texas Rule of Evidence 103 provides that, if a trial court rules to exclude evidence, the complaining party must inform the court of the substance of the excluded evidence “by an offer of proof, unless the substance was apparent from the context.” Tex. R. Evid. 103(a)(2). The right to make an offer of proof is absolute. See Kipp v. State, 876 S.W.2d 330, 333 (Tex. Crim. App. 1994); Andrade v. State, 246 S.W.3d 217, 226 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). A trial court does not have the option to deny such a request, although such denial is subject to a non-constitutional harm analysis. See Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002); Mata v. State, 517 S.W.3d 257, 269 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d). The offer of proof may consist of a concise statement by counsel, or it may be in question-and-answer form. Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). “The primary purpose of the offer of proof is to enable an appellate court to determine whether the exclusion was erroneous and harmful. A secondary purpose is to permit the trial judge to reconsider his ruling in light of the actual evidence.” Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009). 23  Here, while defense counsel questioned S.T., it asked her, “[Gagnon] isn’t the only person that you accused, correct?” The State objected that the question had violated the court’s limine order, and the court sustained the objection. After discussion among the lawyers and the trial court, defense counsel then asked S.T., “Was . . . Gagnon your first sexual experience?” She answered, “Yes.” Defense counsel then said he had “direct impeachment evidence against that answer where she said that that was her first sexual experience” and further said that he wanted to impeach S.T. The State argued that it was improper to impeach with specific acts of sexual conduct. After the trial court allowed the jury to take a break, outside the jury’s presence, each side argued about the propriety of defense counsel’s questioning S.T. about her prior accusations against other persons and her credibility. Ultimately, the trial court told defense counsel to “proceed with your bill,” which counsel did. At one point during the questioning, the trial court sustained a relevancy objection to the following question: “When was the last time you spoke with Colton”—whom S.T. had accused of sexually abusing her. Defense counsel continued asking questions. After that, the trial court twice asked defense council if she had concluded the offer of proof. The first time, counsel said, “I believe that’s it.” The second time the trial court asked whether counsel had concluded her offer of proof, she responded, “Yes, Judge, with this witness.” Gagnon does not complain that the trial court denied him an opportunity to make an offer of proof with another witness; he claims that the trial court’s sustaining 24 of the one relevancy objection prevented him from making an offer of proof with S.T. Thus, this case is unlike those Gagnon cites in his brief where a trial court completely denies a defendant’s request to make an offer of proof. See, e.g., Kipp, 876 S.W.2d at 333 (involving denied request to make a bill of exception in question- and-answer form); Rivera v. State,