Opinion Released February 24, 2017

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

Rubio v. State, No. 13-15-00087-CR (Opinion by Chief Justice Valdez; Panel Members: Justices Rodriguez and Benavides)

In this appeal from a conviction for aggravated sexual assault, the Thirteenth Court of Appeals analyzed whether a jury is required to unanimously agree on the specific incident of crime committed when the State presents evidence of multiple acts of assault that are all part of a single criminal episode.

Defendant Rudy Rubio was convicted of aggravated sexual assault of K.H. Rubio approached K.H. while she was sitting in her parked car outside a friend’s house. Rubio claimed he was an undercover officer, asking K.H. to exit her car and patting her down before escorting her to the backseat of his own car. Rubio then threatened K.H.’s life, blindfolded her, and drove her to a building later discovered to be Rubio’s place of business. Rubio raped K.H. repeatedly, putting his penis in her mouth, anus, and vagina. In several instances, Rubio simultaneously violated K.H. with a dildo while raping her. Rubio also threw cocaine in K.H.’s face, shoving it into her nose and mouth, as well as putting it on her anus and vagina. Altogether, Rubio sexually assaulted K.H. approximately 10 times. When people began to arrive at the place of business, Rubio returned K.H.’s clothes to her and drove her back to her car.

K.H. immediately reported the incident to her mother, who called the police and took K.H. to the hospital. A sexual assault nurse examined K.H., and discovered a tear on her anus. Officer Gutierrez then went to arrest Rubio, and Rubio attempted to flee. DNA samples were collected, and Rubio’s DNA was identified on K.H.’s panties. Rubio ultimately admitted having sex with K.H., but insisted it was consensual.

The State charged Rubio with 10 counts of sexual assault, although it submitted only 7 of the 10 to the jury. The court’s charge instructed the jury that, to convict, the jury had to unanimously find that Rubio committed sexual assault beyond a reasonable doubt; the charge did not state that the jury had to unanimously agree as to the particular incident of assault committed by Rubio. The jury found Rubio guilty only of count 4, convicting Rubio of a single instance of anal rape of K.H.

Rubio appealed, arguing that the charge contained egregious error by failing to properly instruct the jury regarding unanimity and thereby allowing a non-unanimous verdict. Rubio further claimed that the State failed to produce material Brady evidence.

Held: The trial court did not err by failing to instruct the jury regarding unanimity because all of the relevant criminal incidents were part of a single criminal episode. Furthermore, the State did not violate the Brady rule, and Rubio’s attorney did not even object when the evidence was offered. The judgment of the trial court was thus affirmed.


The Thirteenth Court recognized that, generally, a jury charge must be unanimous regarding the specific incident of crime committed by the defendant. Thus, if the State is presenting evidence of numerous criminal incidents under a single charge, it must elect a specific incident for presentation to the jury. However, if multiple acts of intercourse are part of a continuous criminal transaction, the State does not have to elect between the crimes, and the jury need not unanimously agree on a singular incident.

Here, K.H.’s testimony established that Rubio’s acts were part of a single continuous criminal episode lasting approximately five hours. Thus, the State was not required to elect between the incidents, and the trial court did not err by failing to give an unanimity instruction.

Moreover, the incidents of anal rape described by K.H. were sufficiently similar that there was no basis in the record to support a finding of harm; if the jury believed that Rubio committed one incident of anal rape, they would have had no basis for rejecting a similar incident.

Consequently, the trial court did not err, and even if it had, such error would have been harmless.

Brady disclosure

Next, Rubio claimed that the State did not disclose a tape containing the 911 call placed by K.H.’s mother on the day of the rape. However, Rubio’s appellate brief did not explain how the tape was favorable or material to his case. Furthermore, Rubio did not object to the tape on the basis of Brady when it was offered at trial. Finally, Brady evidence need only be disclosed if it is admissible. Yet, the tape was held to be inadmissible hearsay, and it was not admitted before the jury. The court of appeals thus overruled Rubio’s second issue.

Read the Full Opinion Here