Owings, Richard Charles Jr., PD-1184-16

Background

Appellant Richard Owings appealed after conviction for aggravated sexual assault of a child based on testimony by the child-victim (K.M.) describing multiple incidents at different locations and undifferentiated repeated acts.
The trial court did not require the State to elect which specific incident it would rely upon; the State presented evidence of multiple incidents during its case-in-chief and the jury convicted.
The Court of Criminal Appeals granted discretionary review to address whether the trial court erred by failing to require the State to elect and, if so, whether the error was harmless.
The opinion analyzes harmless-error under the constitutional election framework adopted in Phillips and Dixon, focusing on four purposes of the election rule: protection from extraneous-offense prejudice, prevention of aggregate-conviction risk, assurance of unanimity, and notice/opportunity to defend.
The concurrence (joined to the majority disposition to reverse and remand) applies the four-part harmlessness analysis and concludes beyond a reasonable doubt the election error did not contribute to conviction or punishment.

Issues

Issue	State's Argument	Owings's Argument	Held
Whether failure to require State to elect is constitutional error subject to harmless-error review	Election error is constitutional but, if harmless under Four-Purpose test, conviction stands	Election error prejudiced defendant and requires reversal unless harmfulness disproved beyond reasonable doubt	Error is constitutional; court applies harmless-error analysis and reverses court of appeals, remanding for further proceedings (concurrence finds error harmless)
Whether lack of election impaired protection from admission/use of extraneous-offense evidence	Limiting instruction and admissibility under evidentiary rules mitigate concern; no demonstrated harm	Failure to elect allowed extraneous allegations to remain prominent and risk undue weight	Concurrence: limiting instruction exists and, absent contrary record, jury presumed to follow it—no impairment shown
Whether lack of election increased risk jury convicted on aggregate of multiple incidents rather than proof of a specific offense beyond reasonable doubt	Each alleged incident had sufficiently specific testimony to sustain conviction independently, minimizing aggregate-risk	Multiple incidents could have led jury to convict on cumulative effect rather than any one proved beyond reasonable doubt	Concurrence: evidence for each incident was independently sufficient; risk of aggregate-conviction is minimal
Whether lack of election endangered unanimity or deprived notice/opportunity to defend	Record shows no basis to think jurors believed different incidents occurred; defendant’s blanket denial minimized prejudice	Jury may have convicted on different incidents (non-unanimous) and defendant lost chance to focus cross-examination on a single incident	Concurrence: no record evidence of non-unanimity; defense theory (total denial) wouldn’t have materially changed if State had elected—no deprivation of fair opportunity to defend

Key Cases Cited

Phillips v. State, 193 S.W.3d 904 (Tex. Crim. App. 2006) (articulates constitutional nature of election error and outlines harmlessness approach)
Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006) (frames four purposes to guide harmless-error review for election failures)
Crosslin v. State, 235 S.W. 905 (Tex. Crim. App. 1921) (discusses timing for election request and risk of embarrassment from multiple offenses)
O’Neal v. State, 746 S.W.2d 769 (Tex. Crim. App. 1988) (explains when State’s theory can give defendant notice absent formal election)
Sharp v. State, 707 S.W.2d 611 (Tex. Crim. App. 1986) (clarifies that juries may believe portions of witness testimony selectively)
Jackson v. Virginia, 443 U.S. 307 (1979) (standard that appellate courts must defer to jury’s credibility and sufficiency findings)