Reversed and Remanded and Majority, Concurring, and Dissenting Opinions filed July 21, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-03-01259-CR
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ANTHONY DIXON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause No. 43,408
M A J O R I T Y O P I N I O N
Appellant Anthony Dixon was charged by indictment with aggravated sexual assault of a child. The jury returned a guilty verdict and assessed punishment at thirty-five years= confinement in the Texas Department of Criminal Justice, Institutional Division. In four points of error, appellant contends: (1) the trial court erred by failing to require the State to elect a specific act it would rely upon for conviction; (2) the evidence is legally insufficient to support the conviction; (3) the trial court erred by failing to grant his special requested charge; and (4) the trial court erred by failing to grant a mistrial because of improper prosecutorial argument. We reverse and remand.
I. FAILURE TO REQUIRE AN ELECTION
In his first point of error, appellant contends the trial court erred when it failed to require the State to elect a specific act it would rely upon for the indicted offense. Specifically, appellant argues this error denied him of his right to have a unanimous jury verdict. The record reflects the trial court did not require the State to make an election.[1] Appellant moved for an election at various stages of the trial, including at the resting of the State=s case in chief, and at the closing of all the evidence.[2] But the court ultimately denied the relief.
A. Was Appellant Entitled to an Election?
The general rule is, Awhere one act of intercourse is alleged in the indictment and more than one act of intercourse is shown by the evidence in a sexual assault trial, the State must elect the act upon which it would rely for conviction.@ O=Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). Before the State rests, the trial court has discretion in directing the State to make an election. See id. at 771B72. AHowever, once the State rests its case in chief, in the face of a timely request by the defendant, the trial court must [emphasis added] order the State to make its election. Failure to do so constitutes error.@ Id. at 772.[3]
Here, appellant was indicted for aggravated sexual assault of a child younger than fourteen years of age. Specifically, the indictment alleged appellant committed aggravated sexual assault of a child by causing his sexual organ to contact the sexual organ of the complainant. During the State=s case in chief, the complainant, E.M., testified appellant, her uncle, periodically resided at her mother=s apartment and shared a bedroom with the complainant. Appellant slept on a couch in her bedroom while she slept in her bed. E.M. testified that while she slept, appellant would get into her bed, remove his clothes as well as hers, and cause his sexual organ to contact her sexual organ.
During the State=s case in chief, the State asked E.M. if she remembered how many times this happened. She said it happened Aone-hundred times.@ E.M. testified it happened every night that appellant stayed at her home and Aonly one time in the day time.@ The State presented evidence that six stains on E.M.=s bed comforter tested positive for the presence of semen, and Dr. Sheila Lahoti, who examined E.M., testified that she believed there were multiple incidents of vaginal trauma. During closing argument, the State argued that because of E.M.=s youth, she did not really know the exact number of times appellant committed this offense; however, the State argued E.M.=s testimony of Aone-hundred times@ really meant Ait happened a bunch of times.@
Based on E.M.=s testimony, more than one act of sexual contact was shown by the evidence, but only one act of contact was alleged in the indictment. Because appellant moved for an election at the close of the State=s case in chief, failure of the trial court to order the State to make an election constitutes error. O=Neal, 746 S.W.2d at 772.
B. Was the Error Harmful ?
Appellant contends the trial court=s denial of his timely motion to elect effectively denied his right to have a unanimous verdict.
The appellant=s right to require the State to elect is a right of constitutional proportions. Phillips, 130 S.W.3d at 352. This court has held that when the reason underlying the election requirement is unanimity, the error is constitutional in nature.[4] Id. at 351B52.
Where the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a). A constitutional error within the meaning of Rule 44.2(a) is an error that directly offends the United States or Texas Constitution, without regard to any applicable statute or rule. Durham v. State, 153 S.W.3d 289, 292 (Tex. App.CBeaumont 2004, no pet.) (citing Tate v. State, 988 S.W.2d 887, 890 (Tex. App.CAustin 1999, pet. ref=d).
The O=Neal court was faced with facts similar to those in the case at bar in that the State was not, despite repeated motions, required to elect which sexual assault it would rely upon for conviction until the close of all the evidence. However, in O=Neal, the trial court=s failure to require the State to make a timely election as to the offense upon which it sought conviction was held to be harmless because even though many instances of improper conduct were described, the focus was on one sexual assault that occurred on April 24, 1984. Both the complainant and her stepsister testified in detail about the events of that evening; thus, by the close of the State=s case, it was clear that the act upon which the State would rely for conviction occurred on April 24, 1984. 746 S.W.2d at 772. Accordingly, the O=Neal court held the delayed election was error, but in the context of the trial, it was harmless error. Id. at 773.
Here, the State was never required to make an election, and the record did not provide appellant with notice of which assault it would rely upon for conviction, so the harmless error analysis in O=Neal is not applicable. The indictment in this case charged the commission of an offense on or about July 4, 2002. The jury charge contained an application paragraph allowing conviction if the jury found beyond a reasonable doubt the defendant committed the offense on or about July 4, 2002. The charge also advised the jury that the State was not required to prove the offense occurred on the exact date alleged in the indictment, but was allowed to prove the offense to have been committed any time prior to the filing of the indictment so long as the offense occurred within ten years of the filing of the indictment, which was filed October 10, 2002. Thus, the jury was allowed to convict appellant upon evidence sufficient to meet the beyond-a-reasonable-doubt standard, for any offense after October 1992 and before October 10, 2002.[5]
The complainant=s testimony referred to numerous assaults by appellant during the night, but only one that occurred during the day. There was a specific date in the indictment, July 4, 2002, which was repeated in the application paragraph of the jury charge. There was, however, no testimony regarding a specific assault on any particular date. The State could have easily elected an offense upon which it would rely for conviction. However, all of appellant=s motions to require the State to elect an offense were denied. The State proved that the assaults occurred, but no one date was emphasized. Given the broad spectrum of choices available to the jurors, some may have selected a nighttime offense, while others may have chosen the daytime assault. Accordingly, the jury was capable of returning less than an unanimous verdict.
We cannot conclude beyond a reasonable doubt the trial court=s failure to require the State to elect the act upon which it would rely for conviction did not contribute to appellant=s conviction. Thus, the trial court=s error was harmful, and we sustain appellant=s first point of error.
Apparently ignoring the harm analyses in this court=s recent opinions in Phillips and Farr v. State, 140 S.W.3d 895 (Tex. App.CHouston [14th Dist.] 2004, pet. granted), the dissent would hold the trial court=s error harmless.[6] In Phillips, where multiple offenses were charged in the indictment, this court held that, as to two of the indicted offenses, the trial court=s refusal to require the State to make an election allowed the jury to reach a non-unanimous verdict, a constitutional error that harmed appellant resulting in a reversal of those convictions and remand of those cases for a new trial. 130 S.W. 3d at 358. The court also noted in Phillips that A>[n]o principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.=@ Id. at 351 (quoting Cole v. Arkansas, 333 U.S. 196, 201 (1948)). This court reached the same conclusion in Farr. There, this court held that where the sexual assault was described in detail more than once, but no specific incident was described, the jury was potentially allowed to reach a non-unanimous verdict and the trial court=s error was harmful under Texas Rule of Appellate Procedure 44.2(a). This court reversed the conviction in two cause numbers and remanded them for a new trial. 140 S.W.3d at 900. We are bound by these precedents, and so, too, is the dissent.
II. Legal Sufficiency
In his second point of error, appellant argues the evidence is legally insufficient because no evidence was properly before the jury upon which it could base a conviction. Appellant contends that since there was no election, the jury charge instruction limiting the jury=s consideration of the extraneous offenses applied to all the evidence admitted, including evidence of the indicted offense.
In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Sufficiency of the evidence is measured by the hypothetically correct jury charge for the case; a charge that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State=s burden of proof or unnecessarily restrict the State=s theories of liability, and adequately describes the particular offense for which the defendant was tried. Malik v. State, 953 S.W.2d 234, 239B40 (Tex. Crim. App. 1997). This standard Aensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State=s proof of the crime rather than a mere error in the jury charge submitted.@ Id. at 240. We presume any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Jensen v. State, 66 S.W.3d 528, 533 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). The testimony of a victim standing alone is sufficient to support a conviction for sexual assault. Id. at 534.
In this case, the jury charge accurately defined the elements of the offense of aggravated sexual assault of a child. See Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(i), (iii) (Vernon Supp. 2005). Viewing all of the evidence in the light most favorable to the verdict, we find a rational trier of fact could have found the essential elements of the offense of aggravated sexual assault of a child as alleged in the indictment. The evidence supporting the verdict includes the complainant=s testimony that appellant would get in her bed while she was asleep, take off his and her clothes, and cause his sexual organ to contact her sexual organ; the complainant testified this occurred Aone hundred@ times. The State presented evidence of semen stains on the complainant=s comforter, and Dr. Lahoti testified the complainant had vaginal trauma. The evidence also established the complainant was younger than 14 years of age and was not married to appellant.
In this case, there is no failure of the State=s proof of the crime alleged. The harm to appellant occurred because of the possibility that not every member of the jury found appellant guilty of the same crime. Theoretically, each juror could have found appellant guilty of a separate offense that occurred Aon or about July 4, 2002.@ The jury instruction with an extraneous offense charge did not modify the evidence presented to the jury.[7] Viewing the evidence in the light most favorable to the verdict, we find a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Appellant=s second point of error is overruled.
III. Other Issues
Appellant=s third point complains the trial court erred in refusing to incorporate a charge limiting the jury=s consideration to one case for the purpose of a conviction. Appellant acknowledges in his brief this issue was brought up in his discussion of his motion to elect. Because we have sustained appellant=s first point of error based on the trial court=s failure to require the State to make an election as to the offense for which it would rely for a conviction, we need not address this collateral issue.
Appellant=s fourth point complains of the trial court=s failure to grant a mistrial based on allegedly improper jury argument by the State at the punishment hearing. We do not address this issue because we are remanding for a new trial.
Accordingly, we overrules points of error three and four.
CONCLUSION
We have determined the trial court committed reversible error when it failed to require the State to make an election as to which offense identified by the evidence it would rely upon for a conviction. Accordingly, we reverse the judgment of the trial court, and remand the case for a new trial.
/s/ John S. Anderson
Justice
Judgment rendered and Majority, Concurring, and Dissenting Opinions filed July 21, 2005.
Panel consists of Justices Anderson, Hudson, and Frost. (Frost, J., concurring.) (Hudson, J., dissenting.)
Publish C Tex. R. App. P. 47.2(b).
[1] The State argues it made an election. After the State=s case in chief, appellant moved to require the State to elect. Outside the presence of the jury, the State said they were relying on the events that occurred on July 4, 2002. The trial court refused appellant=s request to incorporate the election in the jury charge. The State contends the specific date in the charge and the limiting instruction regarding evidence of extraneous offenses negated the need for an election, or in the alternative, caused appellant no harm. We disagree. The application paragraph in the jury charge was not limited to an event on July 4, 2002. By its language, the charge permitted the jury to convict for any offense proved to have been committed within the ten year period prior to the filing of the indictment. We cannot hold the date of July 4, 2002 in the application paragraph, as modified by the limitations paragraph immediately preceding it, constituted an election contemplated by O=Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1998).
[2] Thus, appellant preserved error by his motion to require election. O=Neal, 746 S.W.2d at 771 n.3.
[3] Case law has given four reasons for this rule: (1) to protect the accused from the introduction of extraneous evidence; (2) to minimize the risk of the jury choosing to convict based on all of the allegations together; (3) to ensure unanimous verdicts; and (4) to give the defendant notice of the particular offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend. See Phillips v. State, 130 S.W.3d 343, 349 (Tex. App.CHouston [14th Dist.] 2004, State=s pet. granted; appellant=s pet. ref=d.).
[4] Texas law requires unanimous verdicts in felony criminal cases. Midence v. State, 108 S.W.3d 564, 565 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (citing Tex. Const. art. V, ' 13, Tex. Code Crim. Proc. Ann. art. 36.29, and Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)).
[5] The wide latitude in offense dates upon which the jury could convict based on the limitations language in the charge was emphasized by the State in its closing argument as follows:
Young children are inexperienced and you know that, but they don=t get dates. So what the law says is, AThat=s fine, just within 10-years of indicting this man, you=ve got to prove that it happened.@ She is only 6. The State has proven the date.
[6] If wishes were horses, beggars would ride. The dissent would hold the trial court=s refusal to grant appellant=s request for an election as to the offense upon which conviction was sought was error, but harmless because the error is Apurely technical,@ and the Aharm espoused by [appellant] is absolutely theoretical.@ The dissent is not, however, writing on a clean slate; indeed, the dissent=s position has no supporting authority, and conflicts with opinions from this court. We have relied, in part, on O=Neal where the court held the trial court=s refusal to grant appellant=s election request until the close of all the evidence was error, but harmless error because the evidence provided notice to the appellant of the act of intercourse the State would rely upon for conviction. 746 S.W.2d at 772B73. No such specific evidence was presented here, and, because the record here did not provide Dixon with notice of the act the State would rely upon for conviction, the dissent may not base it=s position on the harmless error analysis in O=Neal. Using the dissent=s analysis, Dixon was exposed to the risk the jury might choose to convict, not because one or more crimes were proven beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty. Phillips, 130 S.W3d at 349. The dissent describes the risk of conviction based on evidence of multiple crimes not meeting the beyond-a-reasonable-doubt threshold as one of the Alaudable reasons for the rule requiring an election by the State,@ but cavalierly discards the risk as purely Atheoretical.@
[7] In Rodriguez, the court held a minor=s testimony that appellant delivered cocaine to her Amaybe 20 or 30 times@ during the nine-month period preceding the date alleged in the indictment was not evidence of extraneous offenses. Rodriguez v. State, 104 S.W.3d 87, 91 (Tex. Crim. App. 2003).