COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00239-CR
MOHAMMED REZA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Mohammed Reza appeals his conviction for aggravated sexual
assault of a child. In two issues, Reza argues that the trial court erred by not
requiring the State, upon Reza‘s request, to elect which of multiple acts it was
relying on for conviction and by not charging the jury with language giving effect
to the State‘s insufficient election. We will affirm.
1
See Tex. R. App. P. 47.4.
II. FACTUAL AND PROCEDURAL BACKGROUND
In 1995, Farzana and her husband Shaikh, moved from Bangladesh to the
United States; initially, they stayed in Texas with Shaikh‘s sister Daisy and
Daisy‘s husband Reza. In June 1995, Farzana and Shaikh had a daughter, A.H.,
and in 1999, they moved to Canada. A.H. and her parents kept in close contact
with Daisy and Reza, who remained in Texas. A.H. often went on family
vacations with Daisy and Reza, she visited them every summer, and she even
asked her parents if she could refer to Reza, her uncle, as her dad. When A.H.
was eight years old, Reza began sexually assaulting her; he would touch her
―private parts‖ when they were at his house alone. A.H. did not tell anyone
because Reza told her not to.
In January 2006, when A.H. was ten, Farzana, A.H., and A.H.‘s younger
sister moved to Texas so that Farzana could join Reza‘s business of owning and
operating convenience stores. Shaikh travelled back and forth between Canada
and his family in Texas. Farzana and her daughters lived with Reza and Daisy in
Decatur for the first couple of months of 2006, and Reza continued touching A.H.
inappropriately during that time.
While living with Reza and Daisy, Farzana noticed changes in A.H.; A.H.
told her mother that she did not want to live there and asked to sleep in her
mother‘s bedroom instead of the guestroom. After they moved out of the house,
A.H. did not want to go back to visit, and when she did, she did not want to go
inside. In 2006, Reza bought A.H. two sets of silky pajamas; both Daisy and
2
Farzana thought this was unusual because he had never bought clothes for his
family. When they asked Reza why he had bought the pajamas, he explained
that she comes over wearing jeans and that she needs to be comfortable; he
insisted that the pajamas be left at his house.
On Thanksgiving 2006, when A.H. was eleven, Reza and Daisy had a
party at their house. Farzana was not feeling well and decided to leave the party
early. Despite A.H.‘s request to go home with her mother, Farzana made A.H.
stay at her aunt and uncle‘s house because Farzana did not want to hurt Daisy‘s
feelings. A.H. slept in Daisy‘s bed, and Reza touched her again that night. That
weekend, A.H. told her mother that Reza had been touching her ―private parts‖
for months. About one week later, Farzana told Daisy what A.H. had told her, but
Farzana never called the police. When Daisy confronted Reza, he apologized
and asked her to help A.H. ―recover.‖ Shortly thereafter, Reza visited Farzana;
he told her that he was sorry for what he had done and that it was ―a sick thing to
do,‖ and he asked for her forgiveness. Farzana and her family moved back to
Canada one week later, and Daisy filed for divorce. Daisy ultimately reported
Reza to the authorities.
Judy Waldman, a sexual assault nurse examiner, examined A.H on
January 24, 2007. A.H. told Waldman that she had woken up one night to find
Reza in her room touching her vaginal area inside her underwear. When
Waldman asked A.H. if Reza had touched her with his penis, A.H. said she was
not sure. Waldman did not find any injuries or trauma to A.H.‘s female sexual
3
organ, nor did she expect to find any considering the nature of the contact
described by A.H. and the length of time that had passed since the incident.
Reza was charged by indictment with two counts of aggravated sexual
assault of a child. The first count alleged that on or about January 6, 2006, Reza
penetrated A.H.‘s sexual organ with his finger, and the second count alleged that
on or about November 23, 2006, Reza caused A.H.‘s sexual organ to contact his
sexual organ. The jury convicted Reza of the first count, acquitted him of the
second count, and assessed his punishment at fifteen years‘ confinement and a
$10,000 fine. The trial court sentenced him accordingly.
III. ELECTION
In his first issue, Reza argues that the trial court erred by not requiring the
State to elect, upon defense counsel‘s request, which act the State would rely on
for conviction of each count of sexual assault.
A. Law on Election
Generally, when ―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); see Phillips v. State, 193
S.W.3d 904, 909–10 (Tex. Crim. App. 2006). In this context, an election is ―some
action that excludes or limits the jury‘s consideration of an offense.‖ Ex parte
Goodbread, 967 S.W.2d 859, 861 n.2 (Tex. Crim. App. 1998). Before the State
rests its case in chief, the trial court has discretion in directing the State to make
4
an election. O’Neal, 746 S.W.2d at 771. Once the State rests, upon a timely
request by the defendant, the trial court must order the State to make an election,
and failure to do so is error. Phillips, 193 S.W.3d at 909.
The election requirement forces the State to formally differentiate the
specific evidence upon which it will rely as proof of the charged offense from
evidence of other offenses or misconduct it offers only in an evidentiary capacity.
Id. at 910. This allows the trial judge to distinguish the evidence that the State is
relying on to prove the particular act charged in the indictment from the evidence
that the State has introduced for other relevant purposes, and the trial court can
instruct the jury on the proper use for each type of evidence. Id. (citing Tex.
Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2010)). Moreover, the election
requirement protects fundamental rights such as notice and unanimity, insuring
that the defendant is aware of precisely which act he must defend himself against
and that the jurors know which act they must all agree he is guilty of in order to
convict him. Id.
B. State’s Election was Sufficient
Here, Reza was charged with two offenses, sexual assault by digital
penetration alleged to have occurred on or about January 6, 2006, and sexual
assault by causing A.H.‘s sexual organ to contact his sexual organ alleged to
have occurred on or about November 23, 2006. Evidence at trial revealed a
continuing course of sexual contact between Reza and A.H., beginning when
5
A.H. was eight years old and continuing until sometime around Thanksgiving
2006, when A.H. was eleven.
A.H., who was fourteen years old at the time of Reza‘s trial, testified that
Reza began touching her inappropriately when she was eight years old and that
it usually happened at Reza‘s house at night when they were at home alone.
A.H. testified that in early 2006—when she was ten years old—her family moved
from Canada into Daisy and Reza‘s house in Decatur. According to A.H., Reza
would go into the room where she slept while everyone else was sleeping and
would touch her, both over and under her clothes. He would also go into Daisy‘s
bedroom when A.H. was in there watching TV alone and touch her
inappropriately. A.H. explained that Reza would put his hands down her pants,
that he would touch her ―wiggly part‖ (which A.H. testified was her clitoris), and
that it would hurt. She recalled that Reza had put cream on his finger several
times. A.H. testified that Reza had taken off his pants and her pants, had lain
beside her on the bed, and had pressed his penis to her ―private part.‖ She said
that she had felt ―[w]etness‖ on the bed and on her body. A.H. testified that Reza
had bought her loose-fitting pajamas because he did not like that her jeans were
too tight to take off. After she and her family moved out of Reza and Daisy‘s
house, A.H. would stay over there, sometimes sleeping in the same bed with
Daisy and Reza, and Reza would touch A.H. while his wife was sleeping in the
same bed. According to A.H., the last time Reza ever did anything to her was
after the party on Thanksgiving 2006. A.H. slept over in Daisy‘s bed that night,
6
and Reza touched her with his hand while she was sleeping. Afterwards, A.H.
told her mom what had happened.
At the close of all the evidence, defense counsel requested that the trial
court order the State to elect which conduct they were proceeding on for
conviction of both offenses alleged in the indictment.2 The trial court requested a
response from the State, and the following exchange occurred,
[The State]: Your Honor, we can elect, based on [A.H.]‘s
testimony, the first time the Defendant put cream on his finger, put
his finger down her pants, penetrated her sexual organ. We can
allege –
We can elect the first time that he ever laid her on her side,
spooned up behind her and put his penis between her legs, making
contact with her sexual organ. So we‘ll elect the first time that he did
either of those.
THE COURT: Okay.
[Defense Counsel]: There‘s no – There‘s no allegation.
There‘s no context that that‘s done before the presentment of the
date of the indictment, which is August 29, 2007.
And I would submit that‘s insufficient, but I understand what
they said.
2
Reza argues that he preserved his request for an election at the close of
the State‘s case-in-chief, but our review of the record shows that Reza moved
only for a directed verdict at that time. The trial court deferred hearing his motion
until the next break, and after the defense rested, the trial court took a break and
heard Reza‘s motion for directed verdict. It was not until that point that Reza
requested the trial court to order the State to elect. Consequently, Reza was not
entitled to an election at the close of the State‘s case. See Phillips, 193 S.W.3d
at 912. He was, however, still entitled to a unanimous verdict, and he preserved
that right by requesting an order requiring the State to elect at the close of all the
evidence. See id.
7
THE COURT: All right.
We hold that the State‘s response was adequate to elect the acts upon
which it would rely for conviction. That is, the State‘s response sufficiently
informed the trial court and defense counsel that it was electing to rely on the first
time Reza put cream on his finger, put his finger down A.H.‘s pants, and
penetrated her sexual organ for conviction of the offense alleged in count one of
the indictment—sexual assault by digital penetration. And the State‘s response
also sufficiently informed the trial court and defense counsel that it was electing
to rely on the first time Reza ―ever laid [A.H.] on her side, spooned up behind her
and put his penis between her legs, making contact with her sexual organ‖ for
conviction of the offense alleged in count two of the indictment—sexual assault
by causing A.H.‘s female sexual organ to contact his sexual organ. See id. at
909–10; O’Neal, 746 S.W.2d at 771; Smith v. State, Nos. 02-08-00394-CR, 02-
08-00395-CR, 2010 WL 3377797, at *10 (Tex. App.—Fort Worth Aug. 27, 2010,
no pet.) (not designated for publication) (holding State‘s ―general‖ elections were
adequate ―because the complainants‘ testimony regarding the offenses was
general‖); see also Isenhower v. State, 261 S.W.3d 168, 173–75 (Tex. App.—
Houston [14th Dist.] 2008, no pet.) (analyzing jury charge error based on State‘s
proper election ―to seek conviction based upon the first act of sexual intercourse
that occurred when A.B. was fourteen years old‖). Consequently, we overrule
Reza‘s first issue.
IV. JURY CHARGE
8
In his second issue, Reza argues that the trial court erred by failing to
instruct the jury regarding the State‘s election. The State concedes charge error,
but it disputes that Reza was harmed. Accordingly, we will review whether Reza
was harmed by the trial court‘s failure to include in the jury charge an instruction
that the jury was to consider only the elected acts in deciding Reza‘s guilt and
that limited the jury‘s consideration of extraneous sexual offenses to the purpose
of determining the relationship between Reza and A.H. or their states of mind.
See Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (permitting admission of evidence
of extraneous sexual offenses between defendant and child-victim for its bearing
on their states of mind and previous and subsequent relationship); Dixon v.
State, 201 S.W.3d 731, 734–36 (Tex. Crim. App. 2006); Rivera v. State, 233
S.W.3d 403, 406 (Tex. App.—Waco 2007, pet. ref‘d) (explaining that, when State
makes election, defendant is entitled to jury instruction to consider only elected
act in deciding guilt and limiting jury‘s consideration of all other unelected acts to
purposes for which they were admitted).
A. Standard of Review
1. The Parties’ Arguments
The parties dispute the applicable standard of review. Relying on the court
of criminal appeals‘s opinion in Phillips, Reza argues that the trial court‘s failure
to inform the jury of the State‘s election implicated his right to a unanimous
verdict and placed him in the same position as if no election had been made;
consequently, Reza submits that the error is constitutional and that harm is
9
analyzed under rule of appellate procedure 44.2(a). See Phillips, 193 S.W.3d at
913–14 (holding that failure to require State to elect upon timely request
jeopardizes defendant‘s right to a unanimous jury verdict and is constitutional
error); see also Tex. R. App. P. 44.2(a) (requiring reversal for constitutional error
unless appellate court determines beyond a reasonable doubt that the error did
not contribute to the conviction or punishment); Duffey v. State, 326 S.W.3d 627,
630–31 (Tex. App.—Dallas 2009, no pet.) (applying Phillips‘s harm analysis to
election-charge error because error ―placed [defendant] in the same position as if
no election had been ordered or made‖). The State, on the other hand, argues
that the error is a charge error and that, because Reza failed to object, the
egregious harm standard applicable to unobjected-to charge error applies. See
Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Allen v. State, 253 S.W.3d
260, 264 (Tex. Crim. App. 2008); Hutch v. State, 922 S.W.2d 166, 171 (Tex.
Crim. App. 1996); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985) (op. on reh‘g). The State further contends that this court and other
appellate courts have rejected application of the constitutional harm analysis to
election-charge errors. See Smith, 2010 WL 3377797, at *11–15; see also
Isenhower, 261 S.W.3d at 175–77.
2. Phillips v. State: Harm Analysis Applicable to
Failure to Require State to Elect
In Phillips, the court of criminal appeals held that when a trial court fails to
require the State to elect which transaction it intends to rely upon for conviction
10
after the defendant timely requests such an election—whether the defendant
makes his request after the State rests or after the close of all the evidence—the
trial court commits constitutional error. See 193 S.W.3d at 912–13. The court
explained that when multiple incidents are presented to the jury and the State is
not required to elect, ―[s]ix jurors could convict on the basis of one incident and
six could convict on another (or others).‖ Id. at 913. The court held,
Consideration of these incidents without an election jeopardizes the
defendant‘s right to a unanimous jury verdict as guaranteed by the
Texas Constitution, even though the extraneous incidents may be
admissible for other purposes under Article 38.37 of the Code of
Criminal Procedure. When the Texas Constitution is violated, as it
was in the case before us, the proper analysis is provided by Rule of
Appellate Procedure 44.2(a).
In addition to protecting the unanimity of the jury verdict, an
election is also required in order to provide adequate notice and an
opportunity to defend. The deprivation of notice also implicates of
fundamental constitutional principles, viz: due process and due
course of law.
Id. at 913–14 (footnotes omitted).
In Dixon, the court of criminal appeals reaffirmed its holding in Phillips and
considered the following four main purposes underlying the election rule to
determine whether the appellant had been harmed with regard to the failure to
elect: (1) the appellant‘s need to be protected from the admission of extraneous
offenses; (2) the risk that the jury found the appellant guilty of the charged
offense not because they were proven beyond a reasonable doubt but because
of the admission of the extraneous offenses; (3) the risk of a nonunanimous
verdict; and (4) whether the admission of the extraneous offenses deprived the
11
appellant of adequate notice regarding which offense to defend against. Dixon,
201 S.W.3d at 734–36.
3. Harm Analysis Applicable to Election-Charge Error
Both Phillips and Dixon address harm when the State fails to elect upon
request; they do not deal with a harm analysis when the State makes an election,
yet the trial court fails to include in its jury charge an instruction regarding the
State‘s election. It appears that there is a split among the courts of appeals as to
the applicable standard of review when faced with the latter situation.
In Duffey, the Dallas Court of Appeals analyzed an unpreserved charge
error based on the trial court‘s failure to instruct the jury on the State‘s election.
326 S.W.3d at 631. The court of appeals rejected the State‘s position that ―the
error [was] mere charge error‖ and instead held that Phillips‘s constitutional harm
analysis applied because the error ―placed [the defendant] in the same position
as if no election had been ordered or made.‖ Id.; see also Demps v. State, 278
S.W.3d 62, 68–69 (Tex. App.—Amarillo 2009, pet. ref‘d) (applying rule 44.2(a) to
trial court‘s failure to include instruction requiring unanimity as to one distinct
offense and holding that error did not contribute to conviction).
On the other hand, the Houston Fourteenth Court of Appeals has refused
to apply the constitutional harm analysis to election-charge error. See
Isenhower, 261 S.W.3d at 176. In Isenhower, the trial court granted the
defendant‘s request for an election but failed to include an instruction in the jury
charge; in addressing harm, the court of appeals distinguished Phillips because
12
that case deals with election error, whereas Isenhower was complaining of
charge error. See id. at 175.3 Because Isenhower failed to object to the charge
error, the appellate court applied the egregious harm standard of review. Id.
In our unpublished opinion in Smith, the parties raised the same
arguments regarding the applicable standard of review as they do here. 2010
WL 3377797, at *2. Rejecting the appellant‘s contention that the constitutional
harm standard of review should apply, in Smith we instead conducted a harm
analysis under Almanza‘s ―some harm‖ standard of review applicable to
preserved jury-charge errors. Id. at *2, 11–15; see also Pope v. State, Nos. 02-
08-00235-CR, 02-08-00236-CR, 02-08-00237-CR, 2009 WL 3416459, at *12–13
(Tex. App.—Fort Worth Mar. 3, 2010, pet. ref‘d) (mem. op., not designated for
publication) (applying ―some harm‖ standard to trial court‘s error in failing to
instruct jury on State‘s election after defendant timely objected to jury charge). In
our harm analysis in Smith, we analyzed any possible harm in light of Phillips‘s
four purposes of the election requirement and held that the trial court‘s failure to
3
In Isenhower, at least twice prior to the introduction of certain evidence,
the trial court gave the jury a limiting instruction to consider testimony regarding
extraneous acts for the limited purpose of determining the previous relationship
between the appellant and the complainant. 261 S.W.3d at 176. Thus, the jury
was made aware of the State‘s election, of which incident was the charged
offense, and of which incidents were extraneous acts. Id. In Duffey, however,
like here, the jury was never notified of the State‘s election. 326 S.W.3d at 631.
The Dallas Court of Appeals in Duffey emphasized this fact in distinguishing
Isenhower, but it ultimately concluded that the presence or absence of the jury
during the State‘s election did not affect the trial court‘s failure to properly instruct
the jury on the legal effect of the State‘s election. Id. at 631–32.
13
instruct the jury on the State‘s election did not harm the appellant regarding all
but one count. See Smith, 2010 WL 3377797, at *11–15.4
Today, we reaffirm our holding in Smith, and we disagree with Duffey. As
the State points out on appeal, ―Texas courts have not approached jury charge
issues solely from the perspective of . . . whether or not a constitutional right was
involved, even when addressing charge issues that potentially implicate jury
unanimity.‖ See Ngo v. State, 175 S.W.3d 738, 748–49 (Tex. Crim. App. 2005)
(applying egregious harm standard to erroneous jury charge that permitted non-
unanimous verdict when defendant failed to object to charge). Because Reza did
not object to the trial court‘s failure to include in the jury charge an instruction
regarding the State‘s election, we must decide whether the error was so
egregious and created such harm that Reza was deprived of a fair and impartial
trial—in short, that Aegregious harm@ has occurred. See Tex. Code Crim. Proc.
Ann. art. 36.19; Allen, 253 S.W.3d at 264; Hutch, 922 S.W.2d at 171; Almanza,
686 S.W.2d at 171; see also Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim.
App. 2009) (―A claim of jury-charge error is reviewed using the procedure set out
in Almanza . . . .‖). As we did in Smith, we will analyze any potential harm in light
of the four purposes of the election requirement. See Smith, 2010 WL 3377797,
at *11–12; see also Phillips, 193 S.W.3d at 910.
4
We further explained, ―Even if we were to apply the constitutional harm
standard applied in Duffey, we would conclude and hold that the error was
harmless beyond a reasonable doubt as to those counts.‖ Id. at *14 n.13 (citing
Tex. R. App. P. 44.2(a)).
14
B. Harmless Error
The jury acquitted Reza of the second count alleged in the indictment—
sexual assault of A.H. by causing A.H.‘s sexual organ to contact his sexual
organ; consequently, we will address harm only as it relates to his conviction for
the first count alleged in the indictment—sexual assault of A.H. by digital
penetration. See, e.g., Rivas v. State, 787 S.W.2d 229, 231 (Tex. App.—Corpus
Christi 1990, pet. denied) (holding that appellant failed to show that trial court‘s
failure to quash two counts in indictment harmed him when jury did not convict
him of either alleged offense).
1. Protection from Extraneous Offenses
Regarding the first purpose of the election rule—Reza‘s need to be
protected from the admission of extraneous offenses—article 38.37 permits
evidence of other extraneous sexual acts committed by him on A.H. to show the
relationship between them and their states of mind. See Tex. Code Crim. Proc.
Ann. art. 38.37, § 2. Consequently, Reza was not entitled to protection from the
evidence of extraneous offenses involving A.H. See Dixon, 201 S.W.3d at 734;
Phillips, 193 S.W.3d at 909–10.
2. Risk of Conviction Based on Extraneous Offenses
Regarding the second purpose of the election rule—the risk that the jury
found Reza guilty of the sexual-assault-by-digital-penetration offense not
because it was proven beyond a reasonable doubt but because of the admission
of the extraneous offenses—the multiple acts of sexual assault were all
15
recounted by the same person, A.H. Thus, ―[t]his case is not concerned with
evidence of different activities from different sources that a jury might perceive to
‗add up‘ to the defendant being guilty even though no individual offense was
proven beyond a reasonable doubt.‖ Dixon, 201 S.W.3d at 735.
And as we explained in Smith, in cases involving ―complainant testimony of
a continuing course of the same type of nonspecific, indistinguishable conduct
over a long time period, the issue is typically whether the jury believes the
complainant generally or not at all.‖ 2010 WL 3377797, at *13. A.H. was general
in her description of the assaults; she did not separately detail each time Reza
touched her and she did not give specific dates, other than to testify that the last
time Reza touched her was after a party at his house on Thanksgiving 2006.
A.H. testified generally that Reza first touched her when she was eight years old,
that it usually happened at his home while they were alone at night, and that
Reza continued to touch her when she moved into his and Daisy‘s house in
2006. According to A.H., Reza would stick his hand down her pants and touch
her ―wiggly part‖; sometimes he would put cream on his fingers; sometimes it
happened in Daisy‘s room while A.H. was watching TV; and sometimes it
happened at night while A.H. was sleeping on the futon in the living room.
The indictment alleged that the digital penetration offense occurred on or
about January 6, 2006, which was around the time that A.H. and her family
16
moved into Reza and Daisy‘s home.5 A.H.‘s testimony was corroborated by her
mother, Farzana, who testified that A.H. began acting differently and did not want
to live at Reza‘s house when they moved to Texas; that when they moved out
A.H. did not want to go inside Reza‘s house; and that A.H. ultimately told her
what Reza had done.
There is little, if any, risk that the jury convicted Reza based solely on the
extraneous offenses. That is, if the jury believed that A.H.‘s testimony about
Reza digitally penetrating her female sexual organ on several occasions was
credible as to one of those occasions, then the jury likewise must have believed
that her testimony was credible as to all of them. See Dixon, 201 S.W.3d at 735;
Smith, 2010 WL 3377797, at *12.
3. Risk of Nonunanimous Verdict
Regarding the third reason for the election rule—the risk of a
nonunanimous verdict—there is no question that the jurors unanimously agreed
that Reza intentionally or knowingly penetrated A.H.‘s sexual organ with his
finger on at least one occasion. See Dixon, 201 S.W.3d at 735 n.23 (―Clearly,
however, the jurors unanimously agreed that appellant committed at least one
sexual assault . . . described by the complainant.‖). The issue is whether each
5
Although the indictment included a specific date on which the offense was
alleged to have occurred, the jury was instructed that the State was not required
to prove the exact date alleged in the indictment but was also allowed to prove
that the offense was committed any time prior to the presentment of the
indictment.
17
and every juror agreed that Reza committed the same, single, specific criminal
act. See Ngo, 175 S.W.3d at 745.
The trial court‘s charge instructed the jury to consider testimony about
Reza‘s extraneous offenses only in determining his and A.H.‘s states of mind and
their previous and subsequent relationship, if any. See Tex. Code Crim. Proc.
Ann. art. 38.37, §§ 1(1), 2. The charge did not, however, instruct the jury as to
which acts it was to consider in determining the guilt-innocence inquiry and as to
which offenses were merely extraneous. And although the charge instructed the
jury that their verdict must be by unanimous vote of all jury members, it did not
inform the jury that they had to unanimously agree on a specific act in order to
convict on each count.
As we explained above, A.H.‘s testimony was general in nature; she did
not explain any one incident in more detail than another but instead testified as to
the time frame during which Reza sexually assaulted her, beginning when she
was eight years old and ending around Thanksgiving 2006, and she related the
sequence of events that occurred during those assaults—Reza touched her over
her clothes and on her skin, sometimes he used cream, and it hurt. All of the
assaults happened in Reza‘s house, usually at night either in his bedroom or in
the living room where A.H. sometimes slept.
This is not a case in which the complainant described multiple specific
incidents such that some jurors could have relied on one specific incident and
other jurors could have relied on another specific incident. See, e.g., Farr v.
18
State, 140 S.W.3d 895, 900–01 (Tex. App.—Houston [14th Dist.] 2004) (―[T]he
offense of oral sex was described in detail more than once, potentially allowing
the jury to convict because some of the jurors relied upon one incident and
others relied upon another.‖), aff’d sub nom. by Phillips, 193 S.W.3d at 904;
Phillips v. State, 130 S.W.3d 343, 353–54 (Tex. App.—Houston [14th Dist.] 2004)
(op. on reh‘g) (holding election error was harmful because complainant testified
about two specific occurrences of sexual assault), aff’d, 193 S.W.3d at 904. This
is also not a case in which the complainant‘s testimony was so general in nature
that it did not allege individual incidents. See, e.g., Farr, 140 S.W.3d at 901
(holding testimony that defendant digitally penetrated complainant ―every chance
he got‖ was so general that court could not be certain that trial court‘s failure to
require State to elect did not contribute to conviction).
The facts of this case are more analogous to those in Dixon, where the
complainant described the manner in which the appellant sexually assaulted her
and said that it occurred numerous times—―all of the incidents presented in the
case were presented with equal specificity, and, except for the fact that one
incident occurred during the day, none of the incidents were distinguished in any
manner from each other.‖ 201 S.W.3d at 734. Reasoning that there was simply
no basis in the record for the jury to believe that one incident occurred during the
day but that none occurred at night, the court of criminal appeals perceived no
risk of a non-unanimous verdict. Id. at 735 & n.23; see also Hulsey v. State, 211
S.W.3d 853, 856 (Tex. App.—Waco 2006, no pet.) (following Dixon and holding
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that trial court‘s error in failing to require State to elect was harmless when
testimony showed that defendant touched complainant‘s breasts and genitals
every morning that he could when complainant‘s mother was at work).
Likewise, here, we perceive little to no risk that any juror would have
believed that A.H.‘s testimony as to the incidents of digital penetration was
credible as to one incident but not as to another. See Dixon, 201 S.W.3d at 735.
4. Notice
Regarding the fourth purpose of the election requirement—whether Reza
was deprived of adequate notice regarding which offense to defend against—
Reza‘s defense counsel did not request an election before presenting his
defense. By not seeking an election until after the close of all the evidence, he
was not entitled to an election at the close of the State‘s evidence. See Phillips,
193 S.W.3d at 912. And when he did request an election, he received adequate
notice of the State‘s election, as we explained in part III of our opinion. In fact,
when the State made its election, defense counsel responded that he
―underst[oo]d what they [the State] said.‖ Furthermore, defense counsel never
indicated that Reza‘s defense was adversely affected by not receiving notice of
the State‘s election until after the close of all the evidence. For these reasons,
the notice concerns do not weigh in favor of finding harm. See Duffey, 326
S.W.3d at 634 (holding due process concerns not implicated when defendant
received timely notice of State‘s election upon request and when counsel
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expressly acknowledged understanding the election and did not indicate that
defense was adversely affected).
5. Factors Weigh Against Finding Harm
Having considered the harm to Reza in light of the four main purposes
underlying the election rule, we hold that the trial court‘s error in failing to instruct
the jury regarding the State‘s election was not so egregious and did not create
such harm as to deny Reza a fair and impartial trial. See Almanza, 686 S.W.2d
at 171; see also Dixon, 201 S.W.3d at 734–36; Phillips, 193 S.W.3d at 913–14;
see generally Hutch, 922 S.W.2d at 172–74. Consequently, we overrule Reza‘s
second issue.
V. CONCLUSION
Having overruled Reza‘s two issues, we affirm the trial court‘s judgment.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 17, 2011
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