CROSSOVER: Unpreserved Jury-Unanimity Error in Aggravated Assault: Charge Disjunctives Survive Egargious-Harm Review—A Crossover Lesson for Family-Violence Findings

Brisby Ray Brown v. The State of Texas, 01-24-00559-CR, March 31, 2026.

On appeal from 180th District Court, Harris County, Texas

Synopsis

The First Court of Appeals held that even if the aggravated-assault jury charge improperly commingled two distinct offenses (bodily-injury assault and threat-by-assault) in a disjunctive submission that risked a non-unanimous verdict, the defendant’s failure to object limited review to Almanza egregious-harm. On that record, the court found no egregious harm and affirmed the conviction—underscoring that “unanimity” problems can be real error yet still non-reversible when unpreserved and not outcome-determinative.

Relevance to Family Law

Family-law litigation routinely imports criminal-law concepts—especially in protective orders, SAPCR restrictions, and divorce findings involving “family violence.” This opinion is a cautionary template: when the theory of “family violence” (or an FV-based conservatorship restriction) is submitted, argued, or found on multiple alternative factual/legal predicates, the preservation posture and the specificity of the requested findings often control whether an appellate court treats the problem as reversible error or as harmless/no-meaningful-harm noise. If you allow alternative “family violence” predicates to be blurred together—particularly where different predicates carry different downstream consequences (exclusive use, firearms, 153.004 limitations, supervised visitation, or attorney’s fees)—you may win the skirmish at trial and still lose the war (or vice versa) on appeal.

Case Summary

Fact Summary

The complainant, Stone, testified that Brown kicked in Stone’s front door, causing the door to strike Stone and injure his mouth. Stone further described Brown pouring gasoline around the front porch, creating fear that Brown would ignite it (though there was no evidence of ignition or an ignition source). After Stone fired a warning shot, Brown allegedly escalated by pulling a metal mailbox and post from the ground and throwing it at Stone, striking Stone’s mouth. Brown then threw a metal barbecue lid at Stone, striking Stone’s arm. Stone shot Brown multiple times during the encounter; Brown survived.

The State indicted Brown for aggravated assault with a deadly weapon under two distinct aggravated-assault theories: (1) aggravated assault predicated on causing bodily injury and (2) aggravated assault predicated on threatening imminent bodily injury. The jury charge tracked both theories and, in the application paragraphs, submitted multiple disjunctive pathways for conviction—some bodily-injury-based, some threat-based—paired with different alleged deadly weapons (mailbox/post, barbecue lid, gasoline). The charge included a generic unanimity instruction (“Your verdict must be by a unanimous vote…”). Defense counsel raised multiple charge objections, but did not object on unanimity grounds. In closing, the State argued unanimity existed even if jurors disagreed on whether the offense was by bodily injury or by threat. The jury convicted.

Issues Decided

• Whether the jury charge erroneously permitted a non-unanimous verdict by submitting two distinct aggravated-assault offenses (bodily-injury assault and threat-by-assault) in the disjunctive.
• Because the complaint was unpreserved, whether any charge error caused egregious harm under Almanza.

Rules Applied

• Jury charge duty: Trial court must deliver a charge “distinctly setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. art. 36.14.
• Two-step charge-error review: (1) error; then (2) harm. Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh’g); Alcoser v. State, 663 S.W.3d 160 (Tex. Crim. App. 2022).
• Unpreserved charge error: Relief only on egregious harm. Alcoser, 663 S.W.3d at 165.
• Unanimity framework / gravamen: Jury must be unanimous as to the specific statutory crime, but need not be unanimous on “manner and means” if within the same offense. Landrian v. State, 268 S.W.3d 532 (Tex. Crim. App. 2008); Young v. State, 341 S.W.3d 417 (Tex. Crim. App. 2011); O’Brien v. State, 544 S.W.3d 376 (Tex. Crim. App. 2018).
• Aggravated assault is keyed to the underlying assault type: Bodily-injury assault vs. threat-by-assault are distinct aggravated-assault crimes requiring unanimity as between them. Landrian, 268 S.W.3d at 540.

Application

The court treated the unanimity problem as straightforward at step one. Under Landrian, aggravated assault based on bodily-injury assault and aggravated assault based on threat-by-assault are not merely alternative “manner and means” of the same offense; they are separate offenses for unanimity purposes. Because the application paragraphs allowed jurors to convict if they found either bodily-injury aggravated assault or threat-based aggravated assault (with different alleged deadly weapons), the submission risked a non-unanimous verdict.

But the case turned on step two—harm. Brown did not preserve the unanimity complaint by objection, so he had to show egregious harm under Almanza. The court evaluated the entire charge (including the general unanimity instruction), the state of the evidence (including what was disputed), the arguments of counsel (including the State’s “even if you disagree on bodily injury vs. threat, you can still convict” theme), and the record as a whole. Even assuming charge error, the court concluded the error did not actually—and egregiously—damage the fairness of the proceeding or undermine the basis of the case to the degree required for reversal in an unpreserved posture.

Holding

The court held that the jury charge was erroneous to the extent it commingled two distinct aggravated-assault offenses (bodily-injury aggravated assault and threat-based aggravated assault) in a disjunctive submission that could permit a non-unanimous verdict.

The court further held that because Brown did not object, he was entitled only to Almanza egregious-harm review, and on this record any error did not egregiously harm him. The conviction was affirmed.

Practical Application

For Texas family-law litigators, the appellate lesson is less about aggravated assault and more about how alternative predicates become outcome drivers when they are (a) conflated at submission, (b) exploited in argument, and (c) later defended on appeal under a forgiving harm standard because the complaint was not preserved.

In divorce and SAPCR trials, the “family violence” umbrella often covers materially different factual predicates: assaultive conduct, threats, coercive control narratives, stalking-like behavior, protective-order violations, or weapon-related conduct. Those predicates can support different forms of relief (exclusive use, geographic restriction, supervised visitation, firearm orders, fee shifting, or 153.004 findings). If the trial court is allowed to enter a broad, unspecific FV finding (or the record supports multiple competing predicates), an appellate court may uphold the judgment if (1) no one forced clarity through objections, requested findings, and record development, and (2) the outcome can be defended under a “no harmful error shown” lens.

Strategically, you should treat “multiple-theory FV” the way criminal appellate lawyers treat unanimity: force the theory election or force a clean submission—or be prepared to live with a standard of review that will rarely rescue you.

Checklists

Preservation: Don’t Let Multiple FV Predicates Blur Together

• Object on the record when “family violence” is being submitted or found on multiple distinct predicate acts that carry different legal consequences.
• Request that the court specify the predicate act(s) supporting any FV finding (bench trial: findings of fact; jury trial: specific questions/instructions).
• If opposing counsel argues “they can find FV even if you disagree on which event,” object to improper standard/umbrella theory and request a limiting instruction.
• Preserve error in a post-judgment motion when necessary (request findings, motion to modify/reform, motion for new trial targeting the specific predicate ambiguity).

Trial Framing: Build a Record That Makes Harm Obvious

• Tie each requested FV-based remedy to a specific alleged event (date, conduct, witnesses, exhibits).
• If you represent the respondent, force the proponent to commit: which act is the basis for (i) 153.004 findings, (ii) supervised visitation, (iii) exclusive use, (iv) firearm relief, (v) fee shifting.
• If evidence is thin on one predicate but stronger on another, emphasize the distinction and argue that the weaker predicate cannot “bootstrap” the stronger remedy.
• Request clarity in the judgment (or proposed order) identifying the factual predicate(s) for FV-based relief.

Charge/Submission Hygiene (Jury Trials)

• Request separate questions or separate predicate findings when different FV theories are in play (e.g., bodily-injury conduct vs. threat-based conduct; violation of PO vs. standalone assault).
• Avoid omnibus broad-form submissions that allow a verdict based on materially different conduct.
• Ensure the instructions define the predicate conduct precisely (dates, actors, and the conduct that constitutes FV).
• Make a clean record at the charge conference: the objection, the requested cure, and the court’s ruling.

Appellate Posture: Plan for the Standard of Review You’re Creating

• Assume that unpreserved “submission ambiguity” complaints will face a highly deferential harm analysis.
• If you want a realistic appellate issue, preserve it early and repeatedly: objection + requested finding/submission + ruling.
• When defending a favorable FV finding on appeal, emphasize preservation failures and argue lack of harm—this opinion is a roadmap for why “possible error” is not “reversible error.”

Citation

Brisby Ray Brown v. The State of Texas, No. 01-24-00559-CR (Tex. App.—Houston [1st Dist.] Mar. 31, 2026) (mem. op.).

Full Opinion

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Family Law Crossover

This criminal opinion can be weaponized in family court in two opposite ways, depending on which side you’re on. For the party seeking FV-based restrictions, it supports an “affirm on harm” posture: even if the opposing party later complains that the court’s FV finding could rest on multiple alternative episodes or alternative definitions (bodily injury vs. threats), the proponent can argue the opponent failed to force specificity at trial, so any claimed “theory-mixing” is subject to a tough harm analysis and should not unwind a custody or protective-order judgment. For the party defending against FV findings, the case is a trial-level warning shot: if you do not object to the imprecise, disjunctive way FV is being submitted, argued, or memorialized, you may be stuck on appeal arguing a version of “non-unanimity/ambiguity” under a standard that—like Almanza egregious harm—rarely produces reversals absent a record showing the ambiguity actually drove the outcome.

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