Barnard, Ronnie MacK, PD-0524-15

Ronnie Barnard was indicted on multiple counts of aggravated sexual assault, sexual assault of a child, and indecency with a child based on a former stepdaughter's testimony describing repeated abuse beginning when she was ~9–10 and continuing into adolescence.
The State abandoned three counts before trial and proceeded on ten counts; a jury convicted Barnard on all charges and imposed life sentences, ordered consecutively.
At trial the complainant recounted multiple distinct incidents consistent with the charged offenses; the State did not make a formal election identifying which specific incident(s) it relied on for each indictment count.
Barnard did not request an election or object at the close of the State’s case-in-chief; no contemporaneous motion to require the State to elect was made.
On appeal to the Amarillo Court of Appeals, Barnard argued the trial court abused its discretion by failing to sua sponte require the State to elect; the court held the complaint was unpreserved and, on the merits, that the trial court had no obligation to order an election sua sponte.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a trial court must, on its own motion, order the State to elect which specific act it relies on for conviction when evidence shows multiple acts	Barnard: trial court may and should exercise its discretion to order an election sua sponte before the State rests; no defendant objection is required in that window	State/Amarillo: the State is not required to elect absent the defendant's timely request; the trial court has no duty to order an election sua sponte	Amarillo Court: complaint waived for lack of preservation; even on the merits, trial court not obligated to order election sua sponte and appellant's issue overruled

O'Neal v. State, 746 S.W.2d 769 (Tex. Crim. App. 1988) (explains election requirement and that, after the State rests, a defendant's timely request triggers a mandatory election)
Phillips v. State, 193 S.W.3d 904 (Tex. Crim. App. 2006) (describes election's role in providing notice and jury unanimity and the trial court's duty post-request)
Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) (discusses strategic implications of a defendant choosing not to force an election)
Crawford v. State, 696 S.W.2d 903 (Tex. Crim. App. 1985) (cited for election principles where multiple acts are shown)
Bates v. State, 305 S.W.2d 366 (Tex. Crim. App. 1957) (earlier authority on election when multiple acts of intercourse are shown)
Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009) (cited for the proposition that higher-court review is appropriate where lower courts deviate from established precedent)
Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) (cited regarding discretionary review principles)
Bullcoming v. New Mexico, 131 S. Ct. 2705 (U.S. 2011) (referenced for the proposition that foreseeable burdens on the prosecution are not a sufficient reason to avoid imposing legal obligations)