IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE THIRD COURT OF APPEALS
BELL COUNTY
O P I N I O N
The appellant was convicted of aggravated sexual assault of a child. At trial, the State introduced multiple occurrences of assault and the appellant requested an election at the close of all the evidence, and during the charge conference. The trial court refused to require the State to elect. The appellant appealed his conviction. The Third Court of Appeals found that the trial court did not err in failing to require an election because the appellant did not timely request it. We granted the appellant's petition for discretionary review and now, having found error, we will remand the cause to the court of appeals for a constitutional-harm analysis.
The indictment against the appellant alleged that he had vaginal intercourse with the complainant, his stepdaughter, on or about May 12, 1996, which happened to be Mother's Day. The complainant testified that she distinctly remembered that day, and the State elicited an abundance of testimony to identify this discrete occurrence. (1) More generally, the complainant testified that the appellant began sexually assaulting her when she was four years old, and that he had forced her to have oral, vaginal, and anal intercourse on a regular basis until her mother and the appellant were divorced in 2000. At the charge conference, after the close of all evidence, the appellant requested an election, but his request was denied.
On appeal, the appellant's conviction was affirmed. The court of appeals, citing its own decision in Gutierrez v. State, (2) held in an unpublished opinion that, although the appellant would have been entitled to an election on the facts presented, his motion was untimely because he did not request the election until the charging conference, after the close of all the evidence. (3) The court of appeals reasoned that, at that point in the trial, an election by the State would not have assisted the appellant in the presentation of a defense. (4)
The appellant petitioned this court for discretionary review, raising the argument that the decision of the Third Court of Appeals conflicts with the decision of the Fourteenth Court of Appeals in Farr v. State. (5) Having already granted review in Farr of the same issue raised by the appellant, and having consolidated Farr for review with Phillips v. State, (6) we granted the appellant's petition in this case, holding our review for the disposition of Phillips and Farr. (7) Now that mandate has issued in our consolidated disposition of Phillips and Farr, (8) we turn to the merits of the appellant's claim.
In Phillips and Farr, we held that error results when the trial court fails to require election by the State upon the timely motion of the defendant, even when the request does not come until the close of all the evidence. (9) The purpose of an election is more than to aid the defendant in preparing a valid defense. Election also ensures a unanimous jury verdict. (10) Thus, error results in denying a requested election, even when a defendant does not make his request until the charging conference. The court of appeals should have held that the trial court erred and proceeded to conduct a constitutional-harm analysis. (11)
Having found error, we reverse the judgment of the court of appeals and remand the cause to that court for a constitutional harm analysis.
Delivered: October 4, 2006
Do Not Publish.
1. Specifically, the complainant testified that she was living in Killeen with the appellant, her
mother, and her siblings. The appellant had intercourse with her in her bedroom while her mother
was away. When her mother returned, the complainant and the appellant were still naked in her
bedroom. The appellant told the complainant to hide in the closet, and he told the mother that he and
the complainant were wrapping her Mother's Day present. The complainant's mother testified that
she also recalled this incident, but did not know at the time what had really occurred in the bedroom.
2. 8 S.W.3d 739, 748 (Tex. App.--Austin 1999, no pet.).
3. 4. 5. 140 S.W.3d 895 (Tex. App.--Houston [14 6. 7.
193 S.W.3d 904 (Tex. Crim. App. 2006).
8. Mandate issued July 7, 2006.
10. 11.