*1 by than viva voce officers means other FRANCIS, Clayton Appellant, Joseph perform Senator elected to
vote. is, by the Governor duties Lieutenant Constitution, a language of the Sen- plain Texas. The STATE of Indeed, he member ate officer. remains a If the and ratifiers Senate. framers No. 1132-98. exception clause sec- intended that Texas, Appeals Criminal Court of except 41 apply tion to Senate officers En Banc. beyond could those whose duties extend the Senate —the Lieutenant Governor Dec. pro tempore they could president —then make easily have said so. We decline to exceptions these officers ourselves. parties argued reasons policy have by against
for and an election secret ballot. arguments consid-
These are for us to Constitution,
er; by allowing but not ballot,
requiring a secret commits
choice Senate. IV,
Article 3 of section the Constitution
provides the election of execu- certain Legislature in by
tive officers popular of a in the
event tie vote. We
express no could opinion whether that vote secret if the in the ballot tie was
election Lieutenant Governor.
Accordingly, argu- hearing without oral
ment, the Court directs the court district
to vacate its De- instanter order issued 27, 2000, in
cember Cause No. GN-00- notify and to the Clerk of this Court p.m. today 1:30 that it so. has done We
are confident that the district court will not, If
comply. it does the Clerk shall immediately
issue a writ of mandamus
thereafter. *2 Ball, Arlington,
Wes for appellant. Facts Paul, Matthew Atty., Jeffrey State’s L. Appellant charged with one count of Horn, Van First Asst. Atty., State’s Aus- indecency with a child in single para- a tin, Swenson, DA, Anne Asst. David M. graph indictment. The presented State Curl, DA, Worth, Asst. Fort for the State. evidence of four alleged distinct acts of the
indecency
awith child. Each of these acts
date,
occurred at a different time and
with
OPINION ON STATE’S MOTION
involving
two acts
an improper touching of
FOR REHEARING
the victim’s breasts and
involving
two acts
HOLLAND, J.,
opinion
delivered the
improper
an
touching of the
geni-
victim’s
rehearing
Court on
in which
tals.
MANSFIELD,
MEYERS,
PRICE,
evidence,
At
the close of the State’s
JOHNSON, JJ„ join.
WOMACK and
appellant requested that
the trial court
Following
our
original
sub-
require the State to elect between the four
mission,
granted
we
the State’s Motion for
acts. The
pursue
State elected to
a con-
Rehearing.
prior
We withdraw our
opin-
incidents,
viсtion on two of the
one involv-
ions
following
case and enter the
ing the touching of the victim’s breasts and
opinion of the Court.
involving
one
of the victim’s
Appellant
genitals.
charged-
Appellant objected,
arguing
with a
that
indecency
general
count of
one-paragraph
with a child. The
indictment lim-
introduced
ited the
prosecuting only
evidence of four acts of
State to
one act
inde-
cency
case-in-chief,
of sexual
during
indecenсy.
its
If the
but elected
State was not
act,
to proceed
limited to one
appellant
two of those acts.
asserted that
trial,
Throughout
could
appellant
come to
non-unanimous
asked the
verdict,
jurors
trial court
require
believing beyond
to
the State
with some
to elect
between the
that appellant
two different acts of
reasonable doubt
indecen-
touched
cy, but
the trial court
the victim’s
and
believing
denied these re-
breаsts
others
quests.
The trial
that he
appel-
court also denied
touched
victim’s
requested
appellant’s objections.
lant’s
trial court overruled
charge that would have
required the
prove
appellant
State to
parties
When the trial court asked the
committed
both
acts of indecency.
any objections
charge, ap-
to the
Appellant was convicted of one count of
pellant
request
first reiterated his
that the
indecency with a child.
State be
to elect
between
court
appeals
affirmed the con-
acts of indecency.
again
The trial court
State,
viction. See Francis v.
No. 2-97-
denied that
In
request.
response to that
068-CR (Tex.App.
April
Worth
stated,
—Fort
ruling, Appellant
1998) (not designated
publication).
Re-
In light of
ruling
the Court’s
that there
lying on Kitchens v.
sentenced
five
a $5000
an
This
an “and” instead of
“or.”
include
probated.
request would have created
erroneous
*3
Analysis
however,
Appellant,
previous-
charge.
had
addressing appellant’s point
In
of
conjunctive
the
ly argued
effect of the
error,
necessary
it is
to first determine
the
his
charge
jury
verdict. Before
error,
any,
pre
asserted,
if
charge
whether
was
the
objection
charge, appellant
to
objection
and re
appellant’s
served
urge
Judge, we
still
that [the
would
as
above.
of the
quest
stated
Article 36.15
be
to elect
the
State]
between
states,
Code of
Texas
Criminal Procedure
committing
manners
of
the
may, by
touching
special
The defendant
a
re
betweеn
breasts .or
instruction,
way
quested
call the trial court’s
the
because the
the indict-
charge,
single
single
attention to
in the
as well
is set out in a
court
error
ment
therefrom,
jury
other
authorize
to
paragraph,
as omissions
and no
would
the
objection
essentially
to
exception or
the comt’s
have a non-unanimous verdict
charge
necessary
preserve
beyond
to
if some
a reason-
shall
voted-believed
by any
re
an-
any
special
error reflected
able doubt he touched breasts and
quested
group
beyond
instruction which
trial court
other
a reason-
the
believed
he
refuses.
able doubt
touched
(em- Considering
objection
the
appellant’s
to
art. 36.15
Tex.Code
CRIm.PROcAnn.
added).
repeated attempts
charge,
require
his
to
In
phasis
Stone
this
elect,
unique
the State
and the
nature
applied Article
Court
36.15. The defen-
in
indictment
the
the
incidents
requested
particular
dant in Stone
in-
сase,
objection
jury
appellant’s
in
charge
the
issue of
struction
charge
apprise
sufficient to
the trial
probable
stop
pursuant
cause
vehicle
potential charge
judge of the
error. See
to Article 38.23 of the Code of Criminal
36.15;
art.
see
Procedure.
703 S.W.2d
Tex.Code
CRIM.PROc.Ann.
(Tex.Crim.
Chapman,
also
921 S.W.2d
Crim.App.1986).
noted
The Court first
Stone,
App.1996);
id. at 655. But the Court held that Next, address com we not requested charge need be correct —it jury charge erroneously plaint only be “sufficient to the trial must call less than unani allowed a conviction on court’s attention to the in the omission Contrary to court of mous verdict. charge.” court’s Id. Sincе the trial court assertions, and the Kitch appeals’s State’s in understood that Stone inapplicable to the instant case. ens is objecting to the omission an instruction Kitchens, with the defendant was right stop the officer’s a vehi- regarding murder and sentenced to death. On capital cle, sufficiently “apprised it was court appeal, complained he trial objection in the lant’s to omissions in alternative submitting erred theories Id.; also 43 Dix and chargе.” see Dawson, ap in committing capital murder Texas CRiminal PRactice PRACTICE: in the He plication paragraph charge. (1995). § PROCEDURE 42.104 that the verdict was unanimous argued jury may have Stone omis- since six members of complete While dealt with guilty him of murder the course charge, of an instruction from found sion assault, mem in the while the other six concept applies to errors of sexual same jury guilty may art. of the have found him charge. See TexCode bers CRIm.Proc.Ann. robbery. of murder the course of See also does control the instant case. id. at 257. The Court stated that is “[i]t Schad examined a similar issue to the one appropriate where the alternate theories of presented in Kitchens. plurality con- committing the same offense are submitted cluded that a conviction jury under a in- disjunctive for the struction, require which did not agreement general to return a verdict if the evidence on whether the defendant guilty suрport is sufficient to a finding under felony premeditated murder, murder or of the theories submitted.” Id. at 258. was not unconstitutional. See id. at S.Ct. Kitchens, however,
Unlike the
alternate
committing
theories of
the same
Portions of the
guid-
Schad
lend
offense were not
submitted to
*4
ance, however, in solving appellant’s issue.
Rather,
case.
separate
two
instant.
Justice
concurrence,
Scalia stated in his
offenses were submitted to the
jury
observes,
As
plurality
long
it has
disjunctive. The relevant portion of the
general
been the
rule that when a
charge read:
single crime can be committed in vari-
you
beyond
[I]f
find from the evidence
ways, jurors
ous
agree upon
need not
reasonable doubt that on or about the
the mode of commission. That rule is
November, 1992,
day
1st
in Tarrant
constitutional,
it
probably
is
Texas,
County,
Defendant,
JOSEPH
indispensable
system
in a
that
FRANCIS,
CLAYTON
did ... engage
quires
jury
a unanimous
verdict
by touching
sexual contact
the breast
convict.
aWhen
woman’s charred
genitals
or
of....
body has been found in a burned
added).
(emphasis
The State introduced
house,
ample
and there is
evidence
evidence of four separate incidents.
In
her,
that the defendant set out to kill
incidents,
two different
the appellant
it would be absurd to set him free
touched the victim’s
In
sepa-
breasts.
two
jurors
because six
believe he stran-
occasions,
rate
the appellant touched the
(and
gled hеr
caused the fire accident-
victim’s
There was never a sin-
ly in
hasty escape),
his
while six oth-
gle
incident
in which
appellant
ers believe he left her unconscious and
touched
both the breasts and the
set fire to kill her.
While
seems
of the victim.
perfectly obvious, it is also true as the
appellant requested
When
that the State
out,
plurality points
can
one
con-
elect,
be asked to
proceeded
the State
(a
ceive of novel “umbrella” crimes
the incident in which
touched
felony consisting of either robbery or
the victim’s breast and the second incident
return)
a failure to file a tax
where
in which the appellant touched the victim’s
permitting a 6 to 6 verdict would seem
genitals. These incidents constitute two
contrary
process.
to due
State,
offenses. See Vernon v.
(stat-
841
407 (Tex.Crim.App.1992)
S.W.2d
649-50,
(Scalia, J.,
Id. at
111
2491
S.Ct.
ing that
multiple
“those who commit
dis-
(citations omitted).
concurring)
Justice
crete assaults against the same victim are Scalia further observed that “[w]e would
separate prosecution
punish-
liable for
permit
... an
charging
indictment
every
ment for
instance of such criminal
the defendant
X
assaulted either
on Tues-
conduct.”). Therefore, Kitchens, which day
Wednesday,
Y on
despite
or
the ‘moral
varying
considered one offense with
theo-
equivalence’
of those
acts.” Id. at
commission,
ries of
distinguishable
is
from
(Scalia, J.,
Relying on the (while breast-touching offense lant on the from distinguished Fifth Schad Circuit he was innocent Holley, the other six believed raised in States v. issue United (5th Cir.1991). members con- Holley, breast-touching) and six F.2d 916 of- genital-touching with two counts of on the defendant was victed (while alleged multiple count he was perjury, and each fensе the other six believed trial, object- Appel- At genital-touching). statements. the defendant of the innocent ed to the instructions because lant entitled to an unanimous court failed to instruct 508 S.W.2d verdict. See Brown particular Hence, must be unanimous as to one trial (Tex.Crim.App.1974). statement each count to find the defen- by charging appellant in the court erred *5 guilty. objection His dant was overruled. disjunctive. id. at 920-22.
See Conclusion im- The Fifth Circuit first examined the portance jury an verdict. unanimous jury charge appellant’s submitted at The An jury unanimous verdict ensures than an trial allowed a conviction on less jury agrees the on the factual elements Therefore, jury appel- unanimous verdict. underlying an offense—it is more than for review is sustained. The ground lant’s agreement mere on a violation of a statute. appeals is re- judgment of the court of (citing McKoy See id. at 925 v. North versed, the and this cause is remanded tо Carolina, 433,110 494 108 U.S. S.Ct. analysis. a harm appeals court of See (1990) (Blackmun, J., L.Ed.2d concur- Almanza S.W.2d ring)). requirement un- unanimity The is Crim.App.1984). jury a convicting dercut when risks the acts, defendant different instead WOMACK, J., concurs with agreeing on the same act for a conviction. JOHNSON, joined by MANSFIELD and See id. JOHNSON, J., JJ., opinion. concurs with Looking opinion, at the Hol- the Schad McCORMICK, P.J., KELLER, and ley court noted that the two cases enter- KEASLER, JJ., opinion. dissent without tained different factual scenarios. Schad, single killing But in оne occurred. WOMACK, J., concurring opinion filed a Holley, encompassed a count or two rehearing in which MANSFIELD Because the more offenses. JOHNSON, JJ., joined. jurors agree not require instruction did to I to join opinion. I the write Court’s statement, falsity particular on the of one procedur- of the emphasize importance the court concluded that “there was a rea- the in which this error was commit- al context that the not possibility sonable was tеd. at one respect unanimous with to least statement in each count.” Id. at 929. pleaded very general First the State there evidence terms. In this case Holley reasoning the
Applying
occasions,
by
the
case1,
in four offenses on four
jury charge given
the
instant
however,
helpful
Holley,
are
in illustrat-
requirements
an unanimous
1. Our state
jury charge at
requirements
ing the error in the
verdict are not identical
opinions
trial.
under federal law. The
of Schad
touсhing
good enough.
only
of the victim’s breast and two
Our law allows
one
genitals.
of the victim’s
to
paragraph
be
each
prepared
State could have
a four-count
indictment, information,
an
complaint.5
or
Instead,
indictment.
District
Criminal
State, having
plead
chosen to
Here
Attorney prepared
one-paragraph
indict- only
paragraph,
required
one
to elect
grand jury
present.
ment for
Even
rely.
one incident on which to
This re-
one-paragraph
al-
indictment could have
quirement
giving
is not
essential
leged that
touched the breast
requisite
defendant
notice of the
or genitals.1
This
com-
would have
defend,
charge against
helps
which to
evidence,
ported with the
since there was
jury’s
that the
will
unani-
assure
verdict
no evidence that on
occasion the
Unanimity
felony
mous.
is
In-
lant touched both breast and
constitution,6
by our state
and in all
cases
Attorney
stead the Criminal District
al-
criminal triаls
our law.7
leged that
touched “the
requested
appellant again
elec-
victim, in
genitals”
breast and
of the
reli-
tion after the evidence was closed. Such a
(and
ance on our venerable
now unneces-
postponed election can render harmless
sary)
may charge
rule that the trial court
election,
request
the earlier denial of a
disjunctive
even when the
gave
clearly
when the evidence
notice to
pled
сonjunctive.2
State
These
rely
the defendant of the act the State will
pleading
improper.3
choices in
were not
on,8
but
when
evidence
such
are, however,
They
significant part
the defendant would not have such
what followed.
knowledge
presentation
for "the
of his case
At
presented
trial the
evidence of
possible
in chief.9 It
at
that the
is
least
incidents,
the four
each of which could
*6
give
in
did
evidence
this case
not
such
have
in-
constituted an offense under the
by
But
question
notice.
the
is mooted
the
dictment.
the State rested its case
When
request.
trial court’s denial of the
chief,
in
appellant requested
the
that the
The combination of the State’s form of
rely
elect
act it
on.
State
which one
would
rulings
the trial
pleading and
court’s
request
timely
This
and should have
amount
granted.4
rely
request
may
the
for election
well
been
The State elected to
four,
error,
appellant
thаn
the
did
two acts. Two is better
but
to reversible
but
State,
State,
(Tex.Cr.
(Tex.
1. See Hunter v.
S.W.2d 395
4. See
v.
would have led to a verdict of
(Tex.Crim.App.1992), a case in which
had followed it. But it was better
it is inaccurate to
we determined
given,
than the
that was
which
repeated
a defendant’s
acts of
characterize
*7
allowed the
to convict without reach-
indecency
single
with a child as a
continu-
offense,
ing unanimous verdict on one
as
Goodbread,
ing
under Texas law.
requires.11
our law
Following
prece-
these
from which the should have been state single to elect a offense. Prosecuting Attorney
The urges
that error is waived because a pretrial challenge
failed to mount
form and substance of the indictment. As above,
noted our decisions in Goodbread Vernon, supra, indicate each act indecency separate with a child is a against appellant
offense. The indictment indecency
contained one count of with a
child, alleging two kinds of contact on the
same date. The indictment was valid on face; types
its if both of contact occurred time, they
at comprise the same would
single act. The indictment was therefore subject to a pretrial quash. motion to proof at trial offered showed four dates,
separate acts on four different with allegation geni-
no that both breasts and single
tals were touched on a occasion. proof exposed thus a defect in the it, conjunction
allegations as with the count, single improper-
indictment’s either
ly single treated the offenses as a
continuing ways offense or as two of com-
mitting offense and thus made the pleadings duplicitous.
state’s comments, join these I
With
of the Court. Ray SHEPHERD, Appellee,
Clinton *8 Texas, Appellant. STATE
No. 12-92-00305-CR. Texas, Appeals
Court
Tyler.
May 1994.
Rehearing July Overruled 1994.
Discretionary Review Refused
Dec.