562 S.W.3d 748
Tex. App.2018Background
- Robert Wayne McCombs, Jr. was tried on an amended indictment charging seven counts of aggravated sexual assault of two younger daughters (twins "Janet" and "Jasmine"); two earlier counts involving eldest daughter "Selena" were deleted but Selena testified as an extraneous-offense witness.
- Trial evidence included direct testimony from Janet and Jasmine about multiple incidents of digital and oral penetration, and outcry testimony from a forensic interviewer (Kristi Belluomini). Janet and Jasmine described multiple, recurring incidents at several locations and times.
- The State produced evidence of multiple occurrences for the same statutory acts; after the State rested it elected specific incidents for six of the seven counts (leaving Count Six unelected). One election for Count Seven specified an incident in the bathroom.
- McCombs moved at trial for the State to elect a specific incident earlier and later objected to the jury charge and admission of Selena’s testimony under Rule 403; he defended generally by denying all abuse and alleging fabrication/coaching.
- The jury convicted on all seven counts; punishment was life imprisonment and $10,000 fine on each count. On appeal the court reversed and rendered acquittal as to Count Seven for insufficient evidence (no proof the elected bathroom incident occurred there) and affirmed the remainder of the convictions.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (McCombs) | Held |
|---|---|---|---|
| Sufficiency of evidence for Count Five (anal penetration of Jasmine) | Evidence (outcry witness and Jasmine’s corroboration) proved anal penetration beyond reasonable doubt | Jasmine’s trial denial that father touched her butt undermines proof | Held: Evidence sufficient; conviction on Count Five upheld |
| Sufficiency of evidence for Count Seven (vaginal penetration of Jasmine elected as bathroom incident) | Election of bathroom incident was proper; lack of explicit bathroom testimony immaterial | No evidence showed the elected act occurred in a bathroom, so proof fails | Held: Reversed and rendered acquittal on Count Seven for legal insufficiency (no evidence the elected bathroom act occurred) |
| Timing of State’s election (State elected after defendant began calling witnesses) | Any delay was harmless; State’s later election fulfilled purposes of election rule and did not harm defense | Trial court erred by not forcing election at close of State’s case-in-chief, prejudicing unanimity/defense | Held: Even if error preserved, any failure to require earlier election was harmless beyond a reasonable doubt; issues overruled |
| Jury charge/unanimity for Counts 1–5 (risk of non-unanimous verdict) | Charge and State elections focused jury on specific acts; defendant’s uniform denial made risk of non-unanimity minimal | Charge permitted verdicts based on different incidents; defendant suffered risk of non-unanimous jury findings | Held: Appellant failed to preserve specific charge objection; assuming error, harm was not egregious — claims overruled |
| Admission of Selena’s extraneous-offense testimony (Rule 403) | Testimony admissible under Art. 38.37 and Rule 403 balancing: probative value high and not substantially outweighed by prejudice | Admission was unduly prejudicial and likely to inflame jury, warranting exclusion under Rule 403 | Held: Trial court did not abuse discretion in admitting Selena’s testimony; Rule 403 objection overruled |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for reviewing sufficiency of evidence)
- Malik v. State, 953 S.W.2d 234 (defines the hypothetically correct jury charge approach)
- Cosio v. State, 353 S.W.3d 766 (discusses election/unanimity principles)
- Owings v. State, 541 S.W.3d 144 (election timing and harmless-error framework)
- Isenhower v. State, 261 S.W.3d 168 (limits jury consideration to elected acts)
- Phillips v. State, 193 S.W.3d 904 (charge/election specificity principles)
- Gollihar v. State, 46 S.W.3d 243 (variance between pleading and proof)
- Johnson v. State, 364 S.W.3d 292 (material-variance analysis)
- Dobbs v. State, 434 S.W.3d 166 (rendering judgment of acquittal on insufficiency)
- Chambers v. State, 805 S.W.2d 459 (probative value of outcry testimony even if contradicted)
- Mozon v. State, 991 S.W.2d 841 (deference on Rule 403 balancing)
- Gigliobianco v. State, 210 S.W.3d 637 (factors for Rule 403 balancing)
- Almanza v. State, 686 S.W.2d 157 (egregious-harm standard for preserved charge error)