IN THE
TENTH COURT OF APPEALS
No. 10-04-00338-CR
Elizabeth Christina Pittillo,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2004-583-C
OPINION DENYING REHEARING
Pittillo’s motion for rehearing forcefully argues the unfairness that resulted from the failure of the trial court to require the State to elect among the various offenses it sought to prove and the resulting effect on her entitlement to a limiting instruction about those offenses that were ultimately extraneous. She suggests for the first time that the admission of such evidence without a limitation on the jury’s use of it is so prejudicial as to render the trial fundamentally unfair in violation of the Due Process Clause of the Fourteenth Amendment, citing Dawson v. Delaware, 503 U.S. 159, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992), and Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991).
At least since the Court of Criminal Appeal’s 1988 decision in O’Neal v. State, the trial judge has had the discretion to determine when to require the state to elect between acts, subject to the requirement that the election must be made no later than when the state rests its case in chief. O’Neal v. State, 746 S.W.2d 769, 772 (Tex. Crim. App. 1988). During the intervening period, Rankin v. State was decided, which requires the trial court to give limiting instructions when admitting extraneous offenses. Rankin v. State, 974 S.W.2d 707, 711-12 (Tex. Crim. App. 1996). It is the tension between these two rules that Pittillo says led to fundamental unfairness in her case.
Early in the trial, Pittillo requested that the State be required to elect between potential offenses, and when the request was denied, requested a limiting instruction. The court gave what can only be characterized as a general “other crimes, wrongs, or acts” instruction without focusing on the testimony being given at that time. Counsel renewed the request for an election on at least two more occasions.[1] Thereafter, when counsel would request a limiting instruction when the state offered evidence that could constitute an extraneous offense, the trial judge would say: “I have given that limiting instruction. The jury will consider it given again.” or “The limiting instruction is once again given. The Jury will recall it.” Never was the instruction linked to the testimony being given at the time.
During W.P.’s testimony, Pittillo renewed the request for an election, and the trial judge and counsel engaged in an extended discussion on the record about the trial judge’s discretion, article 38.37 of the Code of Criminal Procedure, the status of the State’s proof, and the defendant’s desire to know which act the State would rely on. Pittillo’s counsel pointed out that extraneous offenses “are to be limited at the time that they are admitted.” He urged: “By the State’s failure to elect, we do not know which acts are extraneous.” The court again gave a “general” instruction, and later in W.P.’s testimony again referred to it.
During Dr. Sims’ testimony, the court gave an abbreviated version of the general instruction. A short time later the court referred to it again and for the first time linked the instruction to specific testimony.
The guidance in O’Neal is limited:
When, as in the present instance, the state has the privilege of proving several acts of sexual intercourse and avails itself of this right, the election should not be required until such stage in the development of the evidence as would give state's counsel an opportunity to intelligently determine upon which transaction he would rely for a conviction, and it should not be so long delayed that it would embarrass the accused by leaving him in doubt as against which offense he will be called upon to defend. Generally the matter should be determined during the opening of the state's case. The application of the rule, however, must of necessity depend upon the facts of each particular case, and the time for the election rest, to a large degree, in the discretion of the trial court, to be reviewed only when the discretion is abused to the prejudice of the accused.
O’Neal, 746 S.W.2d at 771-72 (citing Crosslin v. State, 90 Tex. Cr. R. 467, 929 S.W. 905, 906 (1921)). And, we have found no cases elaborating on the method by which we are to analyze at what stage in the development of the state’s evidence gives state's counsel an opportunity to intelligently determine upon which transaction he would rely for a conviction or when it has been so long delayed that it would embarrass the accused by leaving him in doubt as against which offense he will be called upon to defend.
On original submission, we held that the court did not abuse its discretion in denying the requests to require the State to elect and, because the offenses were not extraneous when proven, did not err in failing to give the requested instructions. Although we perceive it to be a close call based on the facts of this particular case, we cannot say that the court acted outside the zone of reasonable disagreement in refusing to require the State to elect earlier. Thus, we find that the trial court did not abuse its discretion in that regard.
On rehearing, the State also argues, without authority, that testimony admitted under article 38.37 is admitted “without limitation” and that Rule of Evidence 105(a) therefore does not apply. We disagree.
Although the limiting instructions given in this case could have been more specific, some instruction was given. Pittillo does not complain about the content of the instructions, only the timing in relation to the admission of the evidence. Having found that the trial court did not abuse its discretion in refusing Pittillos’s requests for an early election, we find that the instructions were not required because the offenses were not extraneous when admitted. Alternatively, we would hold that the instructions were sufficient. And, if we were to find that the trial court erred in giving the instructions that were given, we would find the error to be harmless.
Pittillo’s motion for rehearing is denied.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs in the denial of the motion for rehearing without a separate opinion)
Rehearing denied
Opinion delivered and filed July 26, 2006
Do Not Publish
[1] During the testimony of W.P. and Dr. Ann Sims.