Owings, Richard Charles Jr.
PD-1184-16
| Tex. Crim. App. | Nov 1, 2017Background
- Appellant Richard Owings requested the trial court force the State to elect which specific alleged act of sexual assault it relied on after the State rested; the trial court denied the request.
- The trial court also failed to give a unanimity jury instruction, but Owings did not object to the charge or raise that omission on appeal, so that constitutional issue was not before the Court.
- The Court of Criminal Appeals considered whether the trial-court refusal to force an election was harmless error and which harm standard applies.
- The majority applied the constitutional-harm standard of Texas Rule of Appellate Procedure 44.2(a) (Chapman/constitutional standard) and found the election error harmless beyond a reasonable doubt.
- Justice concurs separately, arguing election error may not be of constitutional dimension and suggesting future reconsideration of Phillips, advocating application of the Rule 44.2(b) substantial-rights (nonconstitutional) standard instead.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by refusing to force State to elect among multiple alleged incidents | Owings: denial deprived him of choice to limit State to one incident and hampered defense | State: election not required when multiple incidents within indictment; jury may be instructed for unanimity | Error acknowledged but deemed harmless; conviction stands |
| Whether election error is constitutional (requires Chapman/44.2(a)) | Owings (and Phillips precedent): election error impacts unanimity and notice, thus constitutional | Concurrence: election error doesn’t itself violate constitutional provisions; unanimity instruction protects unanimity right; notice derives from indictment | Court followed Phillips and applied constitutional standard here, but concurrence urges reevaluation |
| Whether denial of election implicates due process notice | Owings: denial hampers notice of which act will be used | State: indictment’s “on or about” language gives notice; defendant aware of election option before trial | Court: notice not constitutionally implicated here; concurrence emphasizes indictment provides sufficient notice |
| Appropriate harmless-error standard (44.2(a) vs 44.2(b)) | Owings: (implicitly) Chapman/44.2(a) applies per precedent | Concurrence: use 44.2(b) nonconstitutional substantial-rights test because election error is not inherently constitutional | Court applied 44.2(a) today but concurrence suggests future shift to 44.2(b); outcome unaffected in this case because error found harmless beyond reasonable doubt |
Key Cases Cited
- Chapman v. California, 386 U.S. 18 (U.S. 1967) (establishes beyond-a-reasonable-doubt standard for constitutional trial error)
- Phillips v. State, 193 S.W.3d 904 (Tex. Crim. App. 2006) (held election error is of constitutional dimension)
- Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006) (applied Phillips regarding election error harm analysis)
- Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) (discusses unanimity instruction obligation and strategic election choices)
- Bonilla v. State, 452 S.W.3d 811 (Tex. Crim. App. 2014) (discusses strategy and double-jeopardy implications of election decisions)
- Garcia v. State, 981 S.W.2d 683 (Tex. Crim. App. 1998) (indictment ‘on or about’ dates provide constitutionally sufficient notice)
- Sledge v. State, 953 S.W.2d 253 (Tex. Crim. App. 1997) (defendant presumed on notice that ‘on or about’ supports proof of any offense within limitations period)
- O’Neal v. State, 746 S.W.2d 769 (Tex. Crim. App. 1988) (trial court must force State to elect upon timely request; failure is error)
- Crosslin v. State, 235 S.W. 905 (Tex. Crim. App. 1921) (early authority requiring election on timely request)