Michael Jones v. the State of Texas

NUMBERS 13-24-00607-CR, 13-24-00608-CR, 13-24-00609-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG MICHAEL JONES, Appellant, v. THE STATE OF TEXAS, Appellee. ON APPEAL FROM THE 367TH DISTRICT COURT OF DENTON COUNTY, TEXAS MEMORANDUM OPINION Before Justices Peña, West, and Fonseca Memorandum Opinion by Justice Peña A jury found appellant Michael Jones1 guilty of continuous sexual abuse of a young 1 The record lists appellant as Michael Lamar Jones in multiple documents. The judgments of conviction list appellant as Michael Jones. child, a first-degree felony; 2 aggravated sexual assault of a child, a first-degree felony; 3 and indecency with a child, a third-degree felony. 4 See Tex. Penal Code §§ 21.02, 22.021, 21.11. His punishment was assessed at thirty-seven years’, ten years’, and four years’ imprisonment, respectively, with the sentences to run consecutively. See id. §§ 3.03(b)(2), 3.04(c); TEX. CODE CRIM. PROC. art. 42.08. By four issues, Jones challenges those three convictions, arguing that (1) the trial court erred by not ensuring that the court reporter transcribed the bench conferences as previously ordered in a pretrial motion, (2) the trial court erred because the record does not reflect that the trial court qualified the jury, (3) the jury charge did not require the jury to reach a unanimous verdict on the aggravated sexual assault of a child offense, and (4) the jury charge did not require the jury to reach a unanimous verdict on the indecency with a child offense. We affirm. 5 I. BACKGROUND Jones was charged by three indictments filed on March 9, 2022. The indictment for continuous sexual assault alleged that Jones, “during a period that was 30 days or more in duration . . . commit[ted] two or more acts of sexual abuse, . . . against” A.W. 6 See TEX. PENAL CODE § 21.02(b)(1)(2)(A). The indictment for aggravated sexual assault of a child alleged that Jones “intentionally and knowingly cause[d] the sexual organ of [S.N.], a child younger than 14 years of age, to contact the mouth of [Jones].” See. id. 2 Trial court cause number F22-437-462; appellate cause number 13-24-00607-CR. 3 Trial court cause number F22-439-462; appellate cause number 13-24-00608-CR. 4 Trial court cause number F23-3904-462; appellate cause number 13-24-00609-CR. 5 This case is before the Court on transfer from the Second Court of Appeals pursuant to a docket- equalization order issued by the Supreme Court of Texas. See TEX GOV’T CODE §§ 22.220(a), 73.001. 6 We use pseudonyms to protect the identity of the minor child, the child’s family, and witnesses. TEX. R. APP. P. 9.8. 2 § 22.021(a)(1)(A)(iii). The indictment for indecency with a child alleged that Jones “with the intent to arouse or gratify the sexual desire of [Jones], cause[d S.N.], a child younger than 14 years of age, to expose her genitals.” See id. § 21.11(a)(2)(B). A. Bench Conferences Prior to trial, Jones filed a motion for the court reporter to report all proceedings, including “[a]ll bench conferences between the [c]ourt and counsel whether or not outside the presence of the jury.” The trial court granted the motion. The record reflects that there were several bench conferences held throughout the course of trial. The bench conferences were not recorded or transcribed by the reporter, and neither the State nor Jones’s trial counsel objected to the lack of recording or transcription during trial. B. Jury Qualification On October 7, 2024, jury selection began. The record reflects that Jones appeared at the voir dire proceedings with his trial counsel and announced “ready.” The State also announced “ready.” While still outside the presence of the venire panel, the court asked whether there were any issues “that we want to bring up . . . outside of [the venire panel’s] presence.” Neither the State nor Jones brought up any issues. The venire panel was brought into the courtroom and jury selection began. Both sides had an opportunity to question the panel. After questioning, the trial court excused the panel and took a brief recess to allow each side to submit their peremptory strikes. Before resuming the proceedings, the trial court once again asked the parties whether there were any issues “to take up outside the presence of the jury.” Each side responded there were no issues to address. The venire panel was once again brought into the courtroom and after the jurors selected to serve were called, the jury was seated. The trial court once again asked 3 the parties whether there are “any objection[s] to the seating of this particular panel.” Neither party raised any objection and the panel was sworn in. C. Trial Testimony 1. Continuous Sexual Abuse of A.W. The testimony at trial established that A.W. lived with her mother, C.W. When A.W. was seven years old, C.W. began dating Jones. According to testimony from C.W., Jones moved into the home within a month of their relationship starting. C.W. testified “[e]very day when he got off work, he would come to the home that I shared with my daughter. I would just leave the door unlocked for him.” Jones worked day shifts initially, but then “he got hired on at Peterbilt . . . and then he switched to nighttime.” When Jones began his nighttime schedule, C.W. worked “8:00 [a.m.] to 5:00 [p.m.] Monday through Friday.” Jones would leave work at 1:30 a.m. and was sometimes home by 2:00 a.m. or as late as 7:00 a.m. or 8:00 a.m. C.W. was usually asleep when Jones arrived. She testified she believed A.W. was usually asleep as well. Jones and C.W. had a child together, A.J. Eventually, the relationship began to fall apart, and they separated. In 2017, A.W. made an outcry statement to C.W. wherein A.W. said “[Jones] had been touching her inappropriately.” C.W. testified she took this to mean that Jones “was touching [A.W.’s] private parts, such as her chest, [and] her vagina” but she did not make a police report at that time. C.W. stated she confronted Jones about the outcry statement from A.W. and he denied the allegations. C.W. testified that there were no custody issues pending in court at the time of the outcry. She stated that though she “was done” with the relationship, she “hadn’t told him yet.” 4  2. Offenses Against S.N. S.N. is the child victim alleged in the indictments for aggravated sexual assault and indecency with a child. S.N.’s mother T.N. testified she and C.W. first met “around 2010.” At that time, S.N. was three or four years old and A.W. was around four or five years old, and they began to have sleepovers at C.W.’s house. T.N. testified she and C.W. “talked every day, whether we were in person or over the phone. Our kids played together all the time. They had slumber parties. We did everything.” When Jones and C.W. began dating, T.N. and C.W.’s friendship did not change and S.N. still spent time with A.W. at C.W.’s home. T.N. testified S.N. slept over “[a]t least once a month, if not more.” T.N. testified that her friendship with C.W. eventually ended, and she stated “[they] went several years without speaking” around 2018 or 2019 though she could not recall the reason for the falling out. Up to that point, S.N. had never disclosed any reason for concern regarding sleepovers with A.W. T.N. stated that in 2021 she received a message from Jones “asking if [T.N.] could be a character witness for an upcoming trial.” She was “[p]retty surprised” by the communication because they “hadn’t spoken in years.” Though T.N. did not know what type of trial Jones was involved in, she knew it involved C.W. This seemed “kind of weird” to T.N. because she “was [C.W.’s] friend,” not his. This led T.N. to reach out to C.W. “[j]ust to give her a heads-up what [Jones] had asked,” and T.N. learned that Jones was accused of inappropriately touching A.W. This raised concerns for T.N. because S.N. “stayed over there a lot.” The same day, T.N. sat down with S.N. and “asked her if [Jones] had ever touched her or done anything inappropriate with her.” S.N. then “immediately kind of put her hands in front . . . of her lap, and she just put her face down . . . and she just—literally 5 just [said] ‘yes.’” T.N. indicated that she “did not pry for details at that time.” T.N. informed S.N. that she “would like to press charges” against Jones and S.N. indicated that she was okay with that. A few days later S.N. wrote more details about the allegations against Jones on a piece of paper. The writing was admitted as evidence and read in pertinent part: Most times I would wake up with my pants off and on the floor. He would touch me secretly all the time. One night I woke up to him carrying me to the living room. He laid me down and took my shorts off. He would only use his hands or his mouth, and he would only do things while we were asleep. Happened from when I was 8 until I was 9. S.N. regularly spent the night at A.W.’s home. S.N. testified that up until she was nine or ten years old, she spent “[a]t least half of the weekends” of each month at A.W.’s home. She testified that on one particular occasion, when she was eight years old, she “woke up and someone was carrying [her].” According to S.N.’s testimony, it was Jones who “carried [her] to the living room” and placed her on the couch, removed her shorts, and began touching her “legs and [her] vagina” with his “hand and mouth.” After about twenty minutes [h]e just kind of did that for a little bit and then put my pants back on and brought me back to bed.” S.N. also stated there were times, while spending the night at A.W.’s house, that she woke up and was not wearing pants anymore. She testified this happened “the majority of the times I stayed over there.” She said she brought this to C.W.’s attention but that C.W. “just kind of brushed it off, like she told me I probably got hot at night and did it myself.” S.N. recalled that she “woke up in the middle of the night one time and [she] couldn’t go back to sleep.” She went to the living room and encountered Jones. Jones was watching TV and put on S.N.’s favorite TV show. She testified that she was covered 6 with a blanket and that Jones “put his head under the blanket” and licked “the side of [her] leg.” S.N. testified that Jones touched her private area “maybe two, three” times during her sleepovers and that “[m]ost of the time, I would just wake up with my pants off, and a couple of times I woke up in the middle of the night to him standing there.” S.N. stated it stopped when C.W. and T.N. ceased being friends and she “stopped going over there.” D. Arguments of Counsel After the State closed its case, the State argued that the abuse of S.N. “start[ed] around 2011 to 2012 . . . [T]hat’s when [S.N.] start[ed] having sleepovers at the . . . home.” The State argued that according to the evidence, S.N. would have been around five years old and “likely once a month or every other weekend, the [d]efendant took her shorts off, touching [her with] his hand first, then his mouth, fingers on [her] vagina, moving them around, his mouth on [her] private part.” Additionally, the State argued that S.N. “told [the jury] how multiple times she would wake up with the [d]efendant standing over her with no pants, with no underwear, with her vagina exposed.” Jones’s trial counsel argued that the reports of abuse were precipitated by the initiation of a custody dispute involving C.W. and their son A.J. who was born after Jones moved into the home. Specifically, he noted that on November 3, 2021, a “petition to modify [the] parent-child relationship [was] filed” by C.W.; “[a] week later, November 10[], [S.N.] file[d a] report in the morning”; and later that afternoon, “A.W. filed her first report.” Jones argued the victims’ testimony changed and this illustrated that “things have been created as testimony for this case.” In support of his conclusion, Jones argued “we’re talking about people that are best friends, best friends for life.” 7 E. Unanimity Instruction The trial court provided the jury with a separate charge for each of the three alleged offenses. Jones challenges the jury charges pertaining only to the offenses of aggravated sexual assault and indecency with a child. In each of those charges, the trial court instructed the jury: After you retire to your jury room you should select one of your members as your Presiding Juror. It is the Presiding Juror’s duty to preside at your deliberations, vote with you, and when you have unanimously agreed upon a verdict, to certify your verdict by using the appropriate form, and signing the same as Presiding Juror. Defense counsel had no objections to the charge aside from his request regarding the placement of the “not guilty” option on the verdict form. The State had no requests, modifications, or objections. The jury found Jones guilty and sentenced him as set forth above. The trial court ordered that Jones’s sentences run consecutively. This appeal followed. II. DISCUSSION A. Unrecorded Bench Conferences Jones argues in his brief that “[t]he trial court committed reversible error in failing to transcribe ten bench conferences.” The State argues that Jones failed to preserve the issue for review. We agree with the State. 1. Applicable Law Section 52.046(a) of the Texas Government Code establishes that “on request, an official court reporter shall . . . [t]ake full shorthand notes of oral testimony offered before the court,” and also “furnish a transcript of the reported evidence or other proceedings, in whole or in part, as provided by this chapter.” TEX. GOV’T CODE § 52.046(a). Under Texas Rule of Appellate Procedure 13.1, the court reporter must, “unless excused by agreement 8 of the parties, attend court sessions and make a full record of the proceedings.” TEX. R. APP. P. 13.1(a). Although the trial court has the preliminary burden “to ensure the presence of a court reporter at all proceedings,” there is “an additional, independent burden on the appealing party to make a record demonstrating that error occurred in the trial court. This includes the burden to object . . .in order to preserve any error that may occur for appeal.” Davis v. State, 345 S.W.3d 71, 77 (Tex. Crim. App. 2011). Where the record reflects that the appealing party failed to make an objection to the court reporter’s failure to record a bench conference, that party fails to preserve the issue for appeal. Valle v. State, 109 S.W.3d 500, 508 (Tex. Crim. App. 2003); see TEX. R. APP. P. 33.1. 2. Analysis The appellate record indicates Jones moved for and received a pre-trial order for the court reporter to record all bench conferences. However, the record does not reflect that Jones made an objection to the court reporter’s failure to record bench conferences, and he does not allege that he made such an objection at trial. Thus, under Davis and Valle, we conclude that Jones has failed to preserve his complaint for appellate review. See Davis, 345 S.W. 3d at 77; Valle, 109 S.W.3d at 509; TEX. R. APP. P. 33.1(a). We overrule Jones’s first issue. B. Jury Qualification In his second issue, Jones argues that the trial court failed to qualify the jury as required by Texas Code of Criminal Procedure Article 35.12. The State responded that “the silent record does not affirmatively show that jurors were not asked the qualifying 9 questions” and argues Texas Rule of Appellate Procedure 44.2(c)(2) establishes a “presumption that the jury was properly impaneled and sworn.” We agree with the State. 1. Applicable Law A party may challenge for cause a prospective juror who is not a qualified voter, who has been convicted of theft or any felony, or who is legally accused of theft or any felony. TEX. CODE CRIM. PROC. art. 35.16(a)(1)–(3). When a prospective juror is subject to a challenge for cause because he has been either convicted or legally accused of theft or any felony, is under indictment or other legal accusation for theft or a felony, or is insane, the trial court must disqualify that juror. Id. art. 35.19. Texas Code of Criminal Procedure Article 35.12 instructs the trial court how to “test[] the qualification of a prospective juror after the juror has been sworn.” Id. art. 35.12(a). Under that statute, prospective jurors must be asked by the trial court, or under its direction, whether they are qualified to vote in the county and state, whether they have ever been convicted of theft or any felony, and whether they are under indictment or legal accusation for theft or any felony. Id.; see Lowe v. State, 226 S.W. 674, 682 (Tex. Crim. App. 1920) (noting the predecessor statute “is not intended to require the trial court to act independently of a challenge for cause by either party, but to accurately prescribe the test which shall be legally sufficient to sustain such challenge when made”). Illustrative here, in Bonilla-Rubio v. State, the transferor court recognized that “[i]n larger judicial districts, it is standard to ask the qualifying questions of the general jury pool, typically in a central jury room, under the direction of the court before the venire members are sent to their respective courts to be impaneled for a specific case.” No. 02- 23-00200-CR, 2024 WL 4377437, at *2 (Tex. App.—Fort Worth Oct. 3, 2024, no pet.) 10 (mem. op., not designated for publication); Carrier v. State, No. 05-23-00143-CR, 2024 WL 3507198, at *4 (Tex. App.—Dallas July 23, 2024, no pet. h.) (mem. op., not designated for publication). Unless the matter was “disputed in the trial court, or unless the record affirmatively shows the contrary,” we presume that the jury was properly impaneled. TEX. R. APP. P. 44.2(c)(2). A silent record is not enough to amount to an “affirmative” showing that the statutory qualification procedure did not occur. Osteen v. State, 642 S.W.3d 169, 171 (Tex. Crim. App. 1982); see also Ritchey v. State, No. 11-20-0035-CR, 2022 WL 3649433, at *2 (Tex. App.—Eastland Aug. 25, 2022, no pet.) (mem. op., not designated for publication) Hollek v. State, No. 13-16-00402-CR, 2017 WL 1380525, at *1 (Tex. App.—Corpus Christi–Edinburg Feb. 2, 2017, no pet.) (mem. op., not designated for publication); Watson v. State, No. 10-24-00363-CR, 2026 WL 24972, at *2 (Tex. App.—Waco Jan. 29, 2026, no pet.) (mem. op., not designated for publication). 2. Analysis Here, the record indicates that during voir dire, the trial court did not ask the prospective jurors the three qualifying questions listed in Article 35.12 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 35.12; Bonilla-Rubio, 2024 WL 4377437, at *2. After each party questioned the panel and the jurors were chosen, the trial court asked whether there were “any objection[s] to the seating of this particular panel.” Neither party made any challenge for cause or raised any objection on any grounds to any of the jurors who were ultimately selected. Jones did not object to any juror’s qualification in the trial court, and on appeal he has not pointed to any evidence that the prospective jurors were not properly qualified. 11 See TEX. R. APP. P. 44.2(c)(2). Making no citations to any portion of the appellate record, Jones contends that “[t]he trial court did not qualify the jury.” Jones assumes that because the trial court did not ask the qualifying questions on the record, the jury was not asked those questions under Article 35.12 of the Texas Code of Criminal Procedure and, therefore, that the jury was improperly impaneled. Contrary to Jones’s contention, there is no requirement under Article 35.12 that the prospective jurors be qualified on the record. See TEX. CODE CRIM. PROC. art. 35.12(a). And nothing in the record before us suggests that this procedure was not followed here or that the prospective jurors were not otherwise asked the qualifying questions at some point off the record. Without more, Jones has failed to overcome the presumption that the jury was properly impaneled. See Carrier, 2024 WL 3507198, at *4 (reaching same conclusion with identical issue of jury qualifications). A silent record is not enough to amount to an “affirmative” showing. Ritchey, 2022 WL 3649433, at *2 (holding that silence in the record as to whether the trial court administered an oath to the jury venire panel under Article 35.02 did not rebut the presumption that jury was properly empaneled and sworn); Hollek, 2017 WL 1380525, at *1 (same); see Osteen, 642 S.W.3d at 171. We overrule Jones’s second issue. C. Jury Unanimity In his third and fourth issues, Jones alleges that the charge of the court permitted the jury to convict him on aggravated sexual assault of a child and indecency with a child without unanimous agreement upon the acts that constitute each respective offense. 12  1. Applicable Law Texas law requires that a jury reach a unanimous verdict about the specific crime that the defendant committed. Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). Guaranteeing unanimity is ultimately the trial court’s responsibility because it must instruct the jury on the law applicable to the case. Id. at 776; see TEX. CODE CRIM. PROC. art. 36.14. When a defendant is charged with multiple counts of sexual offenses that each allege the same on-or-about date, the jury must “agree upon a single and discrete incident that would constitute the commission of the offense alleged” because non-unanimous verdicts may arise “when the State charges one offense and presents evidence that the defendant committed the charged offense on multiple but separate occasions.” Id. at 771– 72. Under those circumstances, each of the multiple incidents individually would establish a different offense or unit of prosecution, requiring the charge “to instruct the jury that its verdict must be unanimous as to a single offense or unit of prosecution among those presented.” Id. at 772. Whether appellant preserved the error by objection determines the degree of harm necessary for reversal. Id. When a defendant properly objects, the reviewing court reverses where there was “some harm” to his rights. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en banc) (emphasis in original). On the other hand, if a defendant “fails to object or states that he has no objection to the charge,” we will only reverse if the record shows egregious harm to the defendant. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005); see also Almanza, 686 S.W.2d at 171. Review of a charge, therefore, requires two questions: (1) whether error existed in the charge; and 13 (2) whether sufficient harm resulted from the error to compel reversal. Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998). 2. Aggravated Sexual Assault Jones argues in his brief that although S.N. testified that Jones touched her sexual organ with his mouth, her statement that “something happened the majority of the times” she spent the night at A.W.’s house gives rise to the issue of a non-unanimous jury verdict. We disagree. The indictment alleged that Jones, “on or about the 1st day of September, 2014, . . . cause[d] the sexual organ of [S.N.]” to contact the mouth of Jones. In her testimony, S.N. recalled only one incident that occurred when she was eight years old. She testified that she woke up and Jones was carrying her. He took her to the living room where he removed her clothing and touched her vagina “with his “hand and mouth.” The remainder of her testimony regarded her waking up without clothes, which does not constitute aggravated sexual assault. Although S.N.’s written statement referred generally to repeated touching involving Jones’s hands or mouth, the statement did not describe multiple discrete instances in which S.N.’s sexual organ contacted Jones’s mouth. S.N.’s trial testimony identified only one such incident: the occasion on which Jones carried her to the living room, removed her shorts, placed her on the couch, and touched her vagina with his hand and mouth. The evidence did not present the jury with multiple, separate incidents, any one of which could independently support the offense of aggravated sexual assault. Because only one discrete incident supported the aggravated sexual assault application paragraph, the jurors were not permitted to select among multiple units of 14 prosecution in reaching their verdict. The charge therefore did not permit a non- unanimous verdict on this offense. See Cosio, 353 S.W.3d at 771-72. We overrule Jones’s third issue. 3. Indecency with a Child by Exposure The jury charge defined the offense of indecency with a child as: (1) whether the child is of the same or opposite sex, (2) regardless of whether the person knows the age of the child at the time of the offense, (3) the person, (4) with intent to arouse or gratify the sexual desire of any person, (5) causes a child younger than fourteen years old, (6) to expose any part of the child’s genitals or any part of the anus. The charge instructed the jury that if there was evidence of acts other than those charged in the indictment by Jones against S.N., that evidence, if any, could be used in determining Jones’s and S.N.’s state of mind, or to assist the jury in understanding the previous or subsequent relationship between Jones and S.N. and for those purposes only. It also informed the jury that the State had the burden to prove Jones guilty “by proving each and every element of the offense charged beyond a reasonable doubt.” The application paragraph identified the specific offenses. The charge stated, “[y]our verdict must be by a unanimous vote of all members of the jury.” It also addressed the presiding juror’s responsibility to certify the verdict on the appropriate form after the jurors had “unanimously agreed upon a verdict” and how to communicate with the court after reaching a “unanimous verdict.” The jury found Jones was found guilty “as charged” in the indictment. Jones argues on appeal that the evidence presented multiple, but separate, instances of indecency with a child because S.N. testified that “something happened the 15 majority of the time [she] would stay over there” and “[m]ost of the time, [she] would just wake up with [her] pants off, and a couple of times [she] woke up in the middle of the night to him standing there.” See Cosio, 353 S.W.3d at 771–72. The insinuation in the testimony was that Jones caused S.N. to expose her genitals on multiple occasions. Thus, Jones argues, the trial court had a responsibility to “instruct the jury” that it “must agree upon a single and discrete incident that would constitute the commission of the offense alleged” in order to prevent the potential for a non-unanimous verdict. Id. at 771–72. We assume but do not decide that the failure to include a more specific unanimity instruction was error. Based on this assumption, and because Jones did not raise this objection at trial, we apply the egregious-harm standard of review. See Cosio, 353 S.W.3d at 777. The State presented evidence that Jones caused S.N. to expose her genitals on multiple occasions and she was a child younger than fourteen years of age at the time. Nevertheless, the trial court did not include a more specific unanimity instruction in the indecency charge. The lack of a specific unanimity instruction weighs in favor of harm. See id. at 776–77. Moreover, during closing arguments, the State reminded the jury that S.N. “told you how multiple times she would wake up with the [d]efendant standing over her with no pants, with no underwear, with her vagina exposed.” The prosecutor’s argument directing the jury to the testimony showing multiple instances of conduct weighs in favor of a finding of harm. However, Jones’s defensive theory was that because A.W. and S.N. are best friends and their parents were also good friends, the allegations were manufactured lies. He argued that the reports of abuse were made shortly after a custody case was filed on November 3, 2021. 16  Jones refers us to Rodriguez v. State, a similar case in which the Second Court of Appeals found unpreserved charge error. No. 02-18-00057-CR, 2019 WL 406167, at *3– 4 (Tex. App.—Fort Worth Jan. 31, 2019, no pet.) (mem. op., not designated for publication). In Rodriguez, appellant was found guilty of two counts of aggravated sexual assault of a child and one count of sexual assault of a child. Id. at *1. The jury charge contained only a general unanimity instruction that failed to alert the jurors that they needed to be unanimous about which incident formed the basis of each of the aggravated- sexual-assault counts, which were only distinguishable from each other by the alleged on-or-about date. Id. at *3–4. The Second Court of Appeals concluded that this was error because the evidence showed that there were multiple instances of aggravated sexual assault occurring on unspecified dates, allowing for the possibility of non-unanimous verdicts. Id. at *3, *5. Although the Second Court of Appeals found unpreserved charge error, it concluded there was no egregious harm because “the evidence reflected that there was a first incident (which [the victim] testified about in detail) and almost-daily incidents thereafter (for which [the victim] did not provide much detail or distinguish between).” Id. at *3 (concluding there was “no remotely significant risk” of a non-unanimous verdict). That is, the jury was free to conclude that one count pertained to the first incident and that the second count pertained to the consolidated account of the sexual assaults that occurred every day after the first incident. Id. at *6. Jones does not distinguish Rodriguez but instead challenges its reasoning as speculative. We are unpersuaded. The egregious harm inquiry does not attempt to reconstruct the juror’s individual deliberations; it examines whether the record reveals an 17 actual, rather than merely theoretical risk that the erroneous instruction produced a non- unanimous verdict. See Almanza, 686 S.W.2d at 171, 174. Because Jones presented an all-or-nothing fabrication defense and neither the evidence nor the parties’ arguments meaningfully distinguished among the alleged exposure incidents, we conclude that the Rodriguez court’s reasoning applies here. As the prosecutor pointed out in her closing argument, S.N.’s abuse began around 2011 to 2012 when S.N. was about five years old. The State argued S.N. testified that she slept over at A.W.’s house on multiple occasions and she “would wake up with the [d]efendant standing over her with no pants, with no underwear, with her vagina exposed.” This evidence, according to the State, established that Jones “with the intent to arouse or gratify the sexual desire of [Jones], cause[d S.N.] a child, to expose her genitals.” Jones presented an all-or-nothing defense. As in Arrington v. State, 451 S.W.3d 834, 844 (Tex. Crim. App. 2015), “[t]he jury in this case, after hearing all the evidence clearly credited [S.N.’s] story and did not believe [Jones’s] categorical denial of all accusations.” We conclude that the trial court’s failure to include a specific unanimity instruction did not result in actual egregious harm and we overrule Jones’s fourth issue. See Brown v. State, No. 02-22-00190-CR, 2023 WL 4779490, at *8 (Tex. App.—Fort Worth July 27, 2023, no pet.) (mem. op., not designated for publication). III. CONCLUSION We affirm the trial court’s judgment. L. ARON PEÑA JR. Justice Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed on the 1st day of October, 2026. 18