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Clear v. State

Submitting a charge to the jury that allowed a conviction upon a disjunctive finding among three separate offenses constituted egregious error because it deprived the defendant of his right to a unanimous jury verdict, and the appellate court cannot determine that the jury was unanimous in finding the defendant guilty of any offense.

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On appeal from the 203rd District Court of Dallas County, Texas.

OPINION

Donald Earl Clear appeals his conviction for the offense of aggravated sexual assault of a child. The jury assessed his punishment at twenty-five years’ confinement in the Texas Department of Criminal Justice, Institutional Division. He asserts in three issues that: (1) the trial court erred by failing to require the State to elect which alleged illegal act it would rely upon to secure his conviction; (2) the trial court erred by submitting a charge to the jury that allowed a conviction upon a disjunctive finding among three separate offenses; and (3) the trial court erred in denying his motion for a mistrial due to the prejudicial jury argument of the prosecutor that interjected her personal opinion. We reverse and remand for a new trial.

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