Hodges, Charles Lee, PD-0258-15

Background

Defendant Charles Lee Hodges was convicted by a Tarrant County jury of indecency with a child by contact (touching the child’s female sexual organ); acquitted on a separate count (breast).
The complainant testified to multiple instances of inappropriate touching and kissing beginning when she was nine; the State presented several events that could support conviction for the charged count.
Defense timely requested that the State elect which specific incident it would rely on to prove each count; outside the jury’s presence the State elected the first fondling incident when the complainant was nine and on the couch.
The trial court placed the election on the record outside the jury’s presence, defense counsel acknowledged adequacy, but the jury was never instructed about the State’s election and the written jury charge did not mention it; defense did not object to the charge.
On appeal the State conceded the trial court erred by failing to inform the jury of the election. The Second Court of Appeals held error occurred but applied the egregious-harm standard for unobjected-to jury-charge error and found the error harmless; Hodges sought discretionary review.

Issues

Issue	Hodges' Argument	State's Argument	Held
Whether trial court’s total failure to inform jury of State’s election after defense request is constitutional error reviewed under Rule 44.2(a) (harmless beyond a reasonable doubt) or ordinary jury-charge error reviewed under article 36.19/Almanza (egregious harm)	Election (requested by Hodges) implicated unanimity and notice so the failure is a constitutional error; apply Rule 44.2(a) and reverse unless harmless beyond a reasonable doubt	Because defense did not object to the charge, error is subject to Almanza/egregious-harm review for unobjected-to jury-charge errors	Court of Appeals applied the egregious-harm standard and found the error harmless; petitioner challenges that choice in PDR
Whether admission of opinion testimony (witness Jessie’s opinion on child’s truthfulness) was erroneous and preserved for review	Trial court abused discretion by allowing opinion testimony; defense preserved only a nonresponsive objection, so proper Rule 608 objection was not preserved	Trial court did not abuse discretion; defense failed to preserve any relevant complaint for appeal	Court of Appeals rejected Hodges’s claim (preservation and abuse of discretion)
Whether admission of mother Sally’s testimony recounting what the child said (alleged hearsay) was reversible error	Admission of Sally’s statements about the child was hearsay and prejudicial	Any hearsay admission was harmless in context of the whole trial and is subject to Rule 44.2(b) harmless-error review	Court of Appeals held any error in admitting that testimony did not affect substantial rights and was harmless
Whether the election rule’s four purposes (protect from extraneous-offense admission, prevent nonunanimous verdicts, provide notice, and identify the offense to defend against) were frustrated to an extent requiring reversal	The election should protect these interests; failure to notify jury of election after request undermines unanimity/notice and warrants constitutional review	Given testimony showed continuing, indistinguishable conduct and defense acknowledged adequacy of election, risks were low and error was not egregious	Court of Appeals analyzed the four purposes and concluded the error was not egregious and did not deny a fair trial

Key Cases Cited

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (sets egregious-harm standard for unobjected-to jury-charge error)
Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) (applies article 36.19/Almanza analysis to certain unanimity/charge issues when no timely objection is made)
Phillips v. State, 193 S.W.3d 904 (Tex. Crim. App. 2006) (discusses election/unanimity principles in sexual-offense prosecutions)
Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006) (addresses unanimity and related jury-charge protections)
Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013) (harm evaluation principles in jury-charge error context)
Duffey v. State, 326 S.W.3d 627 (Tex. App.—Dallas 2009) (holds failure to inform jury of State election after timely request is a constitutional error subject to Rule 44.2(a))
Reza v. State, 339 S.W.3d 706 (Tex. App.—Fort Worth 2011) (contrasting appellate treatment; supports article 36.19 review)