Lead Opinion
Wе withdraw our opinion issued November 20, 2003, and substitute the following opinion on motion for rehearing.
A jury found appellant guilty of three counts of sexual assault of a child, and sentenced appellant to ten years’ confinement in the Texas Department of Criminal Justice, Institutional Division and a $5,001.00 fine for each count. In nine issues on appeal, appellant complains that the trial court erred (1) by refusing to grant a mistrial even though a witness had mentioned an extraneous offense, (2) by not requiring the State to elect a specific transaction, (3) by refusing to grant a mistrial on the basis of improper jury argument, and (4) by refusing to grant a mistrial because the State improperly commented on appellant’s right to a jury trial. We affirm in part and reverse in part. For two of the indicted offenses, we reverse because we conclude the trial court committed harmful error in not requiring the State to elect which offenses it was relying on for conviction. For the third indicted offense, we affirm because the State presented specific testimony of only one occurrence; on this count, the State was not required to elect.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant initially hired the fifteen-year-old complainant to teach him English and to help him with his business. While they were working together, appellant sexually assaulted the complainant; this sexual activity continually escalated for months. On March 10, 2000, appellant took the complainant to a hotel room where they engaged in sexual activity. The complainant eventually told her mother of the activity, and her mother notified the police.
The State charged appellant with three counts of sexual assault of a child. The jury found appellant guilty of all three counts.
DISCUSSION
Appellant raises nine issues on appeal. In his first issue, appellant contends the trial court erred when it refused to grant his motion for a mistrial based on a witness’s comment about an extraneous offense. Combined in the second, third, and ninth issues, appellant argues the trial court failed to compel the State to elect which transaction it would rely upon for conviction. In the fourth, fifth, seventh, and eighth issues, appellant complains that the trial court erred when it refused to grant a mistrial because of the State’s improper jury arguments. Finally, in the sixth issue, he asserts the trial court erred when it refused to grant a mistrial because the State improperly cоmmented on appellant’s right to a jury trial.
I. IMPROPER COMMENT ON EXTRANEOUS OFFENSE
First, appellant argues the trial court erred by not granting him a mistrial when the complainant mentioned an extraneous offense. At appellant’s request, the trial court instructed the jury to disregard the statement. Nonetheless, he claims a mistrial was warranted. We review a trial court’s denial of a mistrial under an abuse of discretion standard. Ladd v. State,
An instruction by the trial court to disregard improper testimony will usually cure error. Campos v. State,
Here, when the State questioned the complainant about specific acts, she alluded to an extraneous offense by appellant. She stated, in part, the following: Outside the jury’s presence, appellant’s counsel requested a mistrial. The trial court denied the mistrial, but instructed the jury to disregard the last question and the last answer.
[The State]: All right. At some point 14 months later, 15 months later, 16 months later, around May of 2001, did you finally tell your mom?
[The Complainant]: I finally told my mother after my sister confessed of something.
[Defense Attorney]: I will ask that last statement be stricken аnd the jury be instructed to disregard. May we approach the bench, Your Honor?
First, we do not find that the comment obviously refers to an extraneous offense. But even if it did refer to an extraneous offense, the remark was inadvertent and isolated.
II. FAILING TO ELECT A TRANSACTION FOR EACH OFFENSE
In issues two, three and nine, appellant complains that the trial court committed reversible error when it failed to require the State to elect which transaction it would rely upon for each of the thrеe indicted offenses. As to two of the indicted offenses, we agree that the trial court erred by not requiring the State to elect the transaction, and that the error was harmful. As to the third indicted offense — the penetration of the eomplain-
A. Legal Premises Underlying the Election Requirement.
The general rule is “where one act of intercourse is alleged in the indictment and more than one act of intercourse is shown by the evidence in a sexual assault trial, the State must elect the act upon which it would rely for conviction.” O’Neal v. State,
Case law has given four reasons for the rule:
• to protect the accused from the introduction of extraneous offenses, see Fisher v. State,33 Tex. 792 , 794 (1870);
• to minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty, see id. (“The jury may have taken both [offenses] into account, and have considered that one or the other was not sufficiently made out to warrant a conviction, but that both together convinced [it] of the guilt of the defendant....”);
• to ensure unanimous verdicts, that is, all of the jurors agreeing that one specific incident, which constituted the offense charged in the indictment, occurred, see Francis v. State,36 S.W.3d 121 , 123-25 (Tex.Crim.App.2000); and
• to give the defendant notice of the particular offense the State intends to rely upon for prоsecution and afford the defendant an opportunity to defend, see O’Neal,746 S.W.2d at 772-73 .
See also Dix and Dawson, Texas PRACTICE, Criminal Practice and Procedure, Election Among Transactions, “Offenses, ” Acts, or Incidents, vol. 42, §§ 30.52-30.60, pp. 664-0687 (2d ed.2001).
The State admits the trial court erred by not requiring the State to elect an act and a date, and we find the trial court did err by not instructing the State to elect a transaction. See id. Having found that the trial court erred, our next task is to determine whether the error was harmful. Two problems complicate that review, which we will address in turn.
B. Complaint Not Waived by Giving a Bad Reason for Wanting an Election.
The first complicating fact is that on appeal, appellant gives a different reason for wanting the election than he gave the trial court. At trial, appellant advanced double jeopardy concerns as his reason for seeking an election.
To preserve a complaint for appellate review, a defendant must make a timely request, objection, or motion that specifically states the grounds for the requested ruling. Tex.R.App. P. 33.1(a)(1). “An objection stating one legal basis may not be used to support a different legal theory on appeal.” Jensen v. State,
Although appellant advances a different reason for wanting an election on appeal than he advanced at trial, the legal basis for his motion remained the same: he wanted the State to elect the offenses it would rely on for conviction. The trial court was not denied an opportunity to rule on whether to require the election. The election was mandatory, regardless of the stated reason. See O’Neal,
C. The Failure to Require An Election is Constitutional.
Having concluded that appellant can raise a new reason on appeal for wanting an election, we turn to the next complicating factor of our review, and that is, whether the error is constitutional or non-constitutional. We find the case law from the Court of Criminal Appeals unclear on this issue, and the intermediate appellate case law, although clear on what type of error it is, is unconvincing and inadequate as to why the courts have held that the error is non-constitutional or constitutional.
Two Courts of Appeals have held that any error in failing to require the State to elect is non-constitutional in nature. See Cates v. State,
The analysis in Wilson was based on a decision by the Court of Criminal Appeals in Garcia v. State regarding the specificity of the date in an indictment. Wilson,
Three reasons were advanced in Garcia as to why the failure to specify a precise date in the indictment was not constitutional:
First, time is not a material element of an offense (at least, not usually). Second, the primary purpose of specifying a date in the indictment is not to notify the accused of the date of the offense but rather to show that the prosecution*351 is not barred by the statute of limitations. Third, it may be impossible for the State to know precisely, or even approximately, when the charged offense occurred.
Garcia,
None of these reasons apрly to the failure to elect. First, the identity of the offense charged is clearly a material element of that offense. Second, the purpose of election in a case like this, in which multiple offenses may have occurred, is to notify the defendant of the offense with which he is charged, to allow him to prepare a defense, and to obtain a unanimous verdict on the offense charged — not to satisfy the statute of limitations. Third, by the time the case goes to the jury and the State knows what evidence is before the jury, the State is required to choose the offense for which it is asking the jury to convict. By this time, a specific event is important. By this time, the State must identify with sufficient specificity the offense on which it relies for conviction so that the jury will know with certainty which offense the State is alleging the defendant committed. Thus, we disagree that Garcia is reason for holding that this error is non-constitutional.
Unlike the Cates and Wilson Courts, the Austin Court of Appeals, in Gutierrez v. State, held that the right to require the State to elect is constitutional in nature. Gutierrez v. State,
We think the answer may depend on the reason an election is required, which may vary from case to case. Returning to the four reasons for requiring election, we think it most likely that the Court of Criminal Appeals would say that election is required (1) to ensure a unanimous verdict and (2) to give notice of the particular offense charged, and, in some cases, as here, there may be the additional reason that (3) the jury might tend to convict, not because it found beyond a reasonable doubt that each of the offenses was committed, but because it was convinced of guilt because of the number of alleged incidents. If the reason underlying the requirement is unanimity, it appears that the error is constitutional in nature.
Using the constitutional error standard of review, we must reverse unless we find beyond a reasonable doubt that the error did not contribute to the conviction. Id. If the State fails to elect, but the evidence presented clearly indicates which specific incident the State is relying on, the error is not harmful. Compare O’Neal,
D. On Two of the Indicted Offenses, Error was Harmful.
For two of the offenses' — digital and oral penetration of the female sexual organ — we clearly do not know the occurrence the jury relied on to convict. Details of more than a few offenses were presented.
When closing arguments were made, the State did not refer to any specific incidents or offenses. Not once did it point to a date or time or place where even one offense occurred. Instead, the State sрent its time pointing out that appellant’s defense was unbelievable and that the defense strategy was to vilify the complainant.
Thus, both offenses were described in detail more than once; yet, it was completely unclear to the jury which act the State would rely upon for conviction. Cf. O’Neal,
E. On One Indicted Offense, Error was Harmless.
The third offense — penetration of the minor’s mouth by defendant’s sexual organ — presents a more difficult question. On this offense, the complainant testified in detail about only occurrence, but also testified generally that the activity continued at least intermittently from the summer of 2000 until the spring of 2001. The question is whether some members of the jury could have convicted based on the general testimony.
The Court of Criminal Appeals has acknowledged that general statements of repeat occurrences may support a conviction. See Rodriguez v. State,
However, in the ease most similar to this one, the Court of Criminal Appeals held that the failure to elect was harmless. See O’Neal,
III. IMPROPER JURY ARGUMENTS
Next, appellant complains that the trial court erred in not granting a mistrial based on arguments the prosecutor made in his closing. The trial court cured any error as to two of the improper arguments by instructing the jury to disregard them. The last two arguments were improper, and before the jury without any instruction, but we find the error harmless.
Proper jury argument must fall within one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to opposing counsel’s arguments; or (4) a plea for law enforcement. Brandley v. State,
When a prosecutor makes uninvited and unsubstantiated accusations of improper conduct directed toward a defendant’s attorney, in an attempt to prejudice the jury against the defendant, courts refer to this as striking a defendant over the shoulders of his counsel. See Gomez v. State,
Appellant contends the following comments by the State struck at him over the shoulders of his counsel:
1. “I am not going to talk very long, and I’ll basically leave you with a couple things I would ask you to think about in good heart — good*356 heartedly while they get up and talk to you for about 30 minutes, and that is this. First, there are hours and hours of needless, miserable, hopeless and pathetic pecking at the State’s case.”
2. “Where do I start? You know, if a man is caught in a trap he steps in it, didn’t see it coming.... He may bark and cry, chew on the tree, chew his own paw off, chew through the chain, whatever. He will do anything. And it may be a crude comparison but if you think hard about it, good and hard about it, it’s not unlike this case that you have here. Because when you’re caught you do everything in your power to get out. You have your lawyers make personal attacks on me, you get up and make ten-minute speaking objections, you- — ”
3. “ — she’s got to get it again when she came in here. They nailed her up on a cross, they called her whore, they called her a dream girl, they called her a liar.”
4. “Armed with that awesome ability to do right what are you going to do? Are you going to validate the most lame, ridiculous, self-serving, pathetic story from him, the guy who while he testified did not have the guts to look you in the eye? Are you going to believe a 15,16 year old girl, she’s 17 now, who has the courage to come in here and gеt nail[ed] to a cross and gutted for no reason.”
Appellant’s attorney properly objected to all four statements. The trial court sustained appellant’s objection to the first two statements, instructed the jury to disregard, and denied the motions for mistrial. The trial court overruled appellant’s objections to the last two statements. We will discuss separately the first two statements for which the jury received an instruction to disregard, from the last two statements for which the jury did not.
A. Arguments with an Instruction to Disregard.
In most instances, an instruction to disregard an improper jury argument will cure any error. Wesbrook v. State,
B. Arguments without an Instruction to Disregard.
We now address the State’s last two comments that did not receive an instruction to disregard. Practically speaking, it is impossible to articulate a precise rule to determine when a prosecutor is striking over the defense counsel’s shoulders and when he is making a proper jury argument. However, we find that parts of the State’s arguments — “nailed her up on a cross,” “nail[ed] to a cross,” and “called
That means we must determine whether the trial court’s error warrants reversal. See Tex.R.App. P. 44.2. The Texas Court of Criminal Appeals characterized erroneous rulings regarding improper jury argument as non-constitutional or “other error” within Rule 44.2(b).
In Mosley, the court relied on the following three factors to analyze the harm associated with improper jury argument and to determine whether reversal was required: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) the measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosley,
Thus, we look first at the severity of the comments. See id. at 259. As we stated earlier, calling the complainant a “whore” and stating that the defendant was “nailing her to a cross” are improper statements. “Whore” we find somewhat inflammatory; and “nailing her to a cross” is rather inflammatory and the most capable of inciting emotion. We find them moderately extreme.
Second, the trial court overruled appellant’s objections, so it did not cure the State’s misconduct. See id. But it did minimize their impact somewhat by instructing the jurors at the time of the objection to decide the case on the evidence they heard from the witness stand.
Finally, we must look at the certainty of appellant’s conviction absent the misconduct. See id. A good deal of evidence showed that appellant did in fact sexually assault the complainant. A motel receipt confirmed appellant spent a day with the complainant where he sexually assaulted her. A telephone conversation between appellant and the complainant was recorded by police, in which appellant admitted teaching the complainant about sex and, in which, in response to her query about when they would have another threesome, appellant said they would talk about “The Three Musketeers” later. Doctors testified about the physical evidence linking the assault to appellant.
Thus, we find the comments to be error. But, even though improper, even though poor advocacy, they are not so inflammatory as to require reversal. And even though the trial judge did not sustain the objection — which he should have — when
Accordingly, we find the error harmless, and we overrule these two issues.
IY. ALLEGED IMPROPER COMMENT ON RIGHT TO JURY TRIAL
Finally, appellant also complains the State improperly commented on his right to a jury trial. The State argued, in part, the following:
[State]: Now, let’s go back to it. It’s like they nаiled her up to a cross and put a crown of thorns on her head and let the birds peck at her. And it’s no wonder that these cases don’t get reported. It’s not only that she had to get victimized over and over and over by him—
Despite appellant’s timely objection, the trial court allowed the statement.
As evidenced in our earlier discussion, part of this comment probably was improper, but it was not a comment on appellant’s right to a jury trial. See Taylor v. State,
CONCLUSION
In conclusion, all issues other than the election issues are overruled. As to election, we overrule appellant’s issues regarding appellant’s penetration of the complainant’s mouth. We sustain appellant’s issues as to the digital and oral penetration of the complainant’s sexual organ, and reverse those two convictions and remand the cases to the trial court.
Notes
. The trial court also instructed the State to again confer with its witness and explain what evidence she c’ould and could not testify about.
. In fact, the complainant may have said the last comment so softly that the jury could not have heard her. The cotut reporter recorded the word "something” and read that back to the trial court, while the trial court believed the word was "him.” The defense attorney admitted that the court reporter could barely hear her.
.We do not use this phrase to imply that an assault on the sister would not impact the jury at all; we use it only to make the point that no detail was given, we do not know exactly what the comment referred to, and it was mentioned only briefly. This is not the type of testimony that normally would inflame a juiy and prevent it from following the court’s instruction.
. Double jeopardy concern is not a valid reason for wanting an election. If the State does not elect, it is barred from prosecuting in the future any offense within the scope of the indictment and for which evidence was introduced at trial. Ex parte Goodbread,
. Nor does the State appear to contend that appellant waived the argument. The State appears to argue that the failure to raise the issue at trial demonstrates appellant’s inability to establish an alibi, not waiver.
. The State contends that the right to a unanimous verdict is not constitutional in nature. The United States Constitution clearly does not grant a right to a unanimous verdict. See Apodaca v. Oregon,
The applicable text of the Texas Constitution states only that "Grand and petit juries in the District Courts shall be composed of twelve persons, except that petit juries in a criminal case below the grade of felony shall be composed of six persons;.... In trials of
The Court of Criminal Appeals has also stated that there is a constitutional right to a unanimous verdict in criminal cases. See, e.g., Molandes v. State,
.Although Francis ultimately is not an election case — the appeal dealt with charge issues — it is still useful. In Francis, two different offenses contained in a single indictment were charged in the disjunctive so that it was possible for part of the jury to believe that one offense occurred and for part to believe the other offense occurred and yet still convict. The court reversed because it said it was "possible" that the jury might not have been unanimous. See Francis,
. O’Neal was written in 1988 before the current rules for error analysis and therefore does not apply the analysis used today.
. Arguаbly, lack of notice does not apply here because appellant never claimed below that he needed an election to help him in establishing an alibi and on appeal; although he argues this as a reason for reversal, he points to nothing in the record that would support the claim and he mentions no specifics.
. Although the Wilson court concluded the error was harmful, that decision was made using the lesser standard for non-constitutional error. See Wilson,
. For all the offenses, the jury received an "extraneous offense instruction” informing it that it could not consider any of the offenses unless it found beyond a reasonable doubt that the defendant committed them and even then it could consider them only "in determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or аbsence of mistake or accident of the defendant ... in connection with the offense ... alleged in the indictment-" This instruction was appropriate, but it did not clear up any confusion on the juiy's part concerning which of the alleged offenses the State would rely on for conviction.
. The following is lypical of much of the testimony the complainant gave.
Q. And now, let's move into the summer of 2000 and the fall of 2000. Did everything that you’ve discussed, that you told .. . the jury both yesterday and today, take place like you described? Did it keep happening?
A. During the summer, yes it did, somewhat because we were together. But when I found out there was a possibility of going to move we broke up for a small period of time.
Q. Now ... from the spring and summer of 2000, where did this go on?
A. Mainly at his house whenever his flaneé or girlfriend, Amber, wasn’t around.
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Q. And did ... what you testified to yesterday about him placing his finger in your vagina .... and his placing his mouth on your private, did those things continue, aside from the little break points there[,] in the summer of and fall of 2000?
A. Yes.
. In fact, on this record, a traditional harm analysis is essentially impossible. Appellant does claim that the failure to elect denied him effective appellate review of the sufficiency of the evidence; however, he does not raise a separate sufficiency claim, and, more importantly, he does not cite any authority or record references to aid us in any review. As a result, he has waived this particular claim. However, this is an additional reason that the failure to elect can harm a defendant; when an offense has occurred numerous times, as here, appellate review can be hampered to such an extent that it is impossible to do.
. An argument could be made that Rodriguez, holding that general testimony of "it happened maybe 20 or 30 times" was sufficient,
. Some improper jury arguments could be considered constitutional error if the prosecutor’s remarks violated a constitutional issue. See Ortiz v. State,
Dissenting Opinion
dissenting.
I disagree with the majority’s reversal of two of appellant’s convictions. As correctly recognized in the majority opinion, the election requirement can implicate several distinct rights of a defendant including: being provided fair notice of the charged offense, assuring that extraneous offense evidence not be used as proof of guilt, and assuring that a conviction be based on a unanimous jury verdict. Although issues two, three, and nine of appellant’s brief all assign error to the trial court’s failure to require the State to make the required election and provide the corresponding instructions in the jury charge, these three issues collectively claim that appellant was denied only his rights to fair notice of the offense and opportunity to defend, limitation on the use of extraneous offense evidence, and effective appellate reviеw of the sufficiency of the evidence. Although none of these issues allude in any way to appellant’s right to a unanimous jury verdict, the majority’s harm analysis and resulting reversal is based largely on the harm potentially arising from a denial of that right. Because I believe these issues should instead be decided based on the rights which they contend were violated and any harm arising therefrom, I do not agree with the majority’s sustaining of those issues on the unasserted violation of the right to a unanimous jury verdict.