Phillips v. State

instructing punishment Henry Robert Steven

charge that PHILLIPS suspend the trial court “could Farr, Appellants, Daniel imposition of the sentence assessed place appellant community supervision.” The First Appeals Court of of Texas. STATE eomplained-of

held that instructions “unnecessary” “prejudi were neither nor PD-499-04, 500-04, Nos. 501- cial,” explaining contained a 04, PD-1575-04, 1576-04. proper articulation of the law and did not Appellant’s violate rights constitutional Appeals Court of Criminal of Texas. process due and due course of law under 7, June the United States and Texas constitutions. (Tex. 624,

Hobyl v. 2004,

App.-Houston pet. grant [1st Dist.]

ed). granted Appellant’s petition we

When review, discretionary jury-recom-

for community supervision

mended was not to a

available defendant convicted of a jail felony

state under TexCode Crim. 4(d)(2) (Vernon § 42.12 art. Ann.

PROC.

Supp.2004-2005). September

legislature permit amended the statute to

jury-recommended community supervision jail

for defendant convicted of a state

felony.2 further After consideration review, discretionary and be-

petition for Appellant’s

cause issue is moot

purposes jurisprudence, of future we have Appellant’s petition

determined Therefore,

improvidently granted. Appel- petition discretionary

lant’s review is

dismissed. (d)(2) (HB 1). September § 2. Amendment to effective Houston, Chagnard,

Belinda Johnson Phillips. Appellant Robert Steven Salhab, Appellant Joseph Houston Henry Farr. Daniel Smith, D.A., Houston, Kelly History Ann Asst. I. Facts and Procedural for State. Phillips A. Phillips separate indict-

OPINION ments and convicted of three counts of fifteen-year-old girl.1 of a sexual assault PRICE, J., opinion of the delivered the Phillips initially that The record shows Court, MEYERS, JOHNSON, in which English him and hired the victim to teach COCHRAN, JJ., joined. HOLCOMB and help with his business. While Phillips was convicted of three counts of however, together, Phillips began worked separate In a and unrelat- sexual assault. Inci- sexually complainant. assault the case, Farr of two counts ed was convicted repeatedly of assault occurred dents sexual cases, In of sexual assault. both the State and escalated for months until the com- multiple introduced occurrences of each finally plainant sepa- told her mother. assault, type of and the trial court refused indictments, alleged rate three elect, at the State to the close of penetration offenses: of the victim’s mouth which occurrence it appellant’s organ, sexual oral con- Phillips and Farr would use to convict. organ tact of the victim’s sexual with the appealed their sexual assault convictions. mouth, digital penetration appellant’s and error in appeals The court of found both organ. sexual of victim’s cases, finding harm of a constitutional na- trial, At offered evidence con- Phillips’ ture in two of convictions and both offenses. As to the cerning appeals The court of of Farr’s convictions. offense, penetration of the victim’s first granted reversed those convictions. We mouth, testimony was offered detail peti- of both cases on the State’s review specific one occurrence. A date about discretionary tions for review. for that The was identified occurrence. cases, Appellants’ penetration We consolidated testified that complainant also intermittently the same are raised in each of their occurred be- issues of the mouth appeals, Spring cases come from. the 2000 and and both tween Summer how, when, specific as “to or Appeals. Fourteenth Court of 15, 2001, unlawfully, pertinent parts did then and there 1. The of the three indictments intentionally knowingly cause the sexu- read: person organ Complainant], a [the al of 0881466: Indictment No. years age younger seventeen than Jury duly organized Grand of Harris The spouse, to the MOUTH of not his CONTACT Texas, County, presents in the District ROBERT STEVEN PHILIPS. Texas, County, Court of Harris that in Har- Indictment No. 0881468: Texas, County ROBERT STEVEN ris Jury duly organized Grand of Harris The on or about FEB- PHILLIPS ... heretofore Texas, County, presents in the District 15, 2000, did then and there un- RUARY Texas, County, that in Har- Court of Harris lawfully, intentionally knowingly cause Texas, County STEVEN PHIL- ris ROBERT penetration of the mouth of Com- [the ... heretofore on or about JANUARY LIPS plainant], person younger than seventeen 15, 2000, unlawfully, and there did then spouse, years age his with the and not intentionally knowingly pen- cause the organ sexual of the Defendant. etration of the FEMALE SEXUAL ORGAN No. 0881467: Indictment Complainant], person younger [the duly organized Jury Harris The Grand age Texas, years and not his than seventeen presents County, in the District Texas, spouse by placing HIS FINGER in the FE- County, that in Har- Court of Harris Texas, Complain- ORGAN of the MALE SEXUAL County ROBERT STEVEN PHIL- ris ant. on or about MARCH LIPS ... heretofore hold- testimony concerning where.”2 The for its conviction under this Court’s ing in O’Nealv. State.3 offenses, digital penetration other two contact, oral specific, indicating was more trial The court of held that the the offenses occurred on numerous in failing court erred to have the State occasions. The evidence was clear about to convict elect the offenses would use digital first penetration date and oral offense, on each count.4 As to the first specifically contact occurred and indicated court of held that it was error for Phillips’s the offenses occurred not to the State to court showed, apartment. testimony also which it would the transaction digital penetration and oral for conviction. But because there was specific testimony only as to one occur- contact repeatedly occurred over the next only testi- general, nonspecific rence and Phillips’s apartment. few months at No occurrences, mony of other the was error specific given dates were later these remaining harmless.5 For two of- occurrences, although some were identified fenses, however, appeals the court of held by Finally, month. testimony showed that trial in failing that court’s error digital penetration and oral contact also require the state to elect which transaction day, occurred at a motel on a specific and a rely upon would for conviction was receipt was introduced from the motel that harmful constitutional error because the signature. bore Phillips’s complainant given more than had one de- rested, After the Phillips asked type tailed account for each of offense.6 court to B. Farr the occurrence which it intended to rely for a conviction in each alleged of- charged Farr was in two indictments fense. The trial court request. refused the with aggravated sexual assault of a child.7 Phillips was convicted of all three offenses. alleged aggravated The first indictment appealed He to the Fourteenth Court of by sexual assault oral contact.8 The sec- Appeals, claiming that the trial court alleged aggravated ond indictment sexual should have the State to elect the digital penetration assault both and oral transaction which it penetration.9 During charge intended eonfer- (Tex. Phillips Indictment No. 941488: 2004). App.-Houston duly organized Jury [14th Dist.] The Grand of Harris Texas, County, presents in the District Texas, County, Court of Harris that in Har- (Tex.Crim.App.1988). 3. 746 S.W.2d 769 Texas, County ris HENRY DANIEL FARR ... heretofore on or about JANUARY Phillips, 130 S.W.3d at 349. unlawfully, did then and there inten- knowingly tionally cause or- the sexual Id., at 354-55. gan complainant], person younger [the years age than fourteen and not at 353-54. [Farr], spouse of to CONTACTthe MOUTH FARR. of HENRY DANIEL 7. Farr was also in a third indictment indecency relating with awith child to Farr’s pertinent parts 9.The of this indictment read: complainant’s youn- contact with one of the ger sisters. Farr was convicted of this offense Indictment No. 918716: trial, appeal in the same but did not duly organized Jury The Grand of Harris conviction. Texas, County, presents in the District Texas, County, in Har- Court of Harris that Texas, pertinent parts County 8. The of this indictment read: ris HENRY DANIEL FARR ence, paragraph failing held that the State abandoned the error alleging pen- indictment oral the state to elect which transaction second allega- rely upon it would conviction proceeded only etration and tion of that harmful constitutional error because digital penetration as to indict- than one de- testimony, complainant complainant given ment. had more During Farr, for each type claimed her tailed account of offense.12 stepfather, orally times, digital sexual organ giv- charge contacted For assault her sexual four details, ing specific age penetration, her court indicating harmless, act, held that the error was grade school the time of each because complainant testified place. generally well as where the events took complainant digital- repetitive claimed Farr about nature of the inci- also dents, ly penetrated got,” specifically identifying without “every her chance he details of each although provide specific occurrence.13 she did de- tails or dates for these incidents. She State’s Petition C. could how times many not recall these occurred, granted We the State’s for dis- petitions incidents did state cretionary review and consolidated the did not occur in connection with the inci- 1) cases, issues, similarity due in to: of At dents oral sex. the close of all holding in reexamine our v. State guilt phase, appellant evidence at the the O’Neal required to determine when the State is requested require trial to the court to the which it rely upon elect transaction will to an State make election of inci- conviction, overruling its and whether digital pen- of dents oral contact and election automatic er- request constitutes rely upon prove etration it would to the ror, despite lack of eviden- the erroneous aggravated charges. sexual assault The 2) instructions, tiary and and rulings Farr request. trial court denied the re- to whether the court of determine quested again during punish- election in analyzing erred trial courts’ failure phase, again ment but the trial once court to a con- to the State elect under denied appealed. Farr analysis.14 stitutional harm Relying opinion its earlier Phil- on lips, of held that the the court and Analysis II. Law in failing trial court erred Reexamining A. O’Neal it use to elect the offenses would convict on each count.11 As to the offense has asked us to review The State contact, vitality of to deter by continuing of sexual assault oral the court O’Neal ant], 15, 2002, years person younger fourteen ... on or MAY than heretofore about Defendant, unlawfully, intentionally age spouse did there then and of not the knowingly penetration of cause by placing HIS TONGUE in the FEMALE [the FEMALE SEXUAL ORGAN of com- Complainant. ORGANof SEXUAL plainant], person younger than fourteen Phillips, S.W.3d 343. 10. years spouse age and not the Defendant, placing FINGER in the HIS 11. Farr v. 899-900 FEMALE SEXUAL ORGAN of Com- 2004). (Tex.App.-Houston[14th Dist.] plainant. presented It further Harris is Id.., Texas, at County, HENRY FARR ... 900-01. DANIEL 15, 2002, about did heretofore on or MAY intentionally at unlawfully then and there penetration knowingly cause the FE- Complain- 44.2(a). TexR.App. MALE SEXUAL ORGAN of [the Proc. petitioned required reversal.19 The State and we mine when the State rely granted discretionary it review. which transaction will con viction, opportunity and we have taken this reviewing appeals, In the court of we appellant do so. rests, held that before the State the trial sexually accused of assaulting his fifteen- directing court has discretion year-old stepdaughter age since the However, to make an election.20 we also five.15 complainant gave a detailed held that once the State rests its case account of an act of intercourse that oc chief, timely request of a on the defendant April testimony curred on 1984. The ... “the trial court must order the State biological daughter, O’Neal’s who In evaluating make its election.”21 complainant, shared a bed with the corrob holding that Appeals’s Eleventh Court of date, orated the occurrence on that required to made the election was be also set out numerous other acts of inter the State at the close of its we course that she observed between the com erred, held that trial court while the had plainant and O’Neal over the three or four because, by the error was harmless years preceding trial.16 O’Neal requested case, close of the it was clear separate on three occasions that the State the act which the State would be to elect which act of inter April for conviction occurred 1984.22 rely upon course would for conviction— words, presented In other pretrial hearing, at a after the rested clearly de gave notice to the facto finally its at the close of all the appellant as to which act of intercourse the evidence.17 granted O’Neal’s motion was rely upon State would for conviction.23 evidence, at the close of all the and the Thus, delay the election did not proceed State elected to on the occurrence by leaving “embarrass the accused him in 24,1984. April of The election out was set against doubt as which offense he [would] charge along awith be called to defend.”24 jury’s instruction concerning the consider O’Neal, ation of the extraneous acts of interc In reexamining we find no rea- subsequently ourse.18 O’Neal was con holding son to deviate from our that a trial appeal, victed. On the court of by failing court errs to have the State elect held that the properly State was to elect at the close of its evidence when In rely upon requested by which act of intercourse it would the defense. its initial Phillips’s appeal, for conviction at the close of the review of the Fourteenth State’s evidence, Appeals aptly rather than at the close of all the set forward the Court and that the later election reasons to have the State’s juncture:25 prejudiced appellant, requiring thus Id.,

15. 746 S.W.2d at 770. 21. at 772.

16. Ibid. 22. Ibid.

17. at 771. 23. Ibid. 18. Ibid. Ibid, (citing 90 Tex.Crim. Crosslin (1921)). 235 S.W. O'Neal, at 770. Phillips, Ibid. 130 S.W.3d at 349.

(cid:127) type the accused intro- use to accord each protect weight from the offenses;26 Moreover, require-

duction of extraneous evidence. the election protects rights ment fundamental as such (cid:127) jury- the risk to minimize that unanimity, insuring notice that both convict, might choose not because of precisely the defendant is aware which crimes be- proved one or more were against, act he defend himself must doubt, yond a reasonable but because precisely that know act jurors together all of them convinced agree guilty must all he is of in order guilty;27 the defendant was to convict him. Because of the multitude (cid:127) verdicts; is, unanimous to ensure systemic reasons compelling, requir- for jurors

all of the agreeing one election, ing an we decline to our alter incident, which specific constituted the decision in find its reasoning indictment, charged oc- offense applicable today. to the facts before us curred; (cid:127) Analysis the defendant of the Error give and to notice B. offense the State intends

particular Against prosecution Arguments and afford i. The Error rely upon opportunity an to de- the defendant cases, relies on The State fend.29 State,31 McNutt v. Steele v. State and short, requiring the that the State was not re State to elect at contention quired close of its evidence forces to formal- to elect because facts adduced ly specific differentiate the only showed one continuous course of con proof which it will duct or transaction. This court previ has ously held, offense from evidence other or offenses applies Steele only in evidentiary it offers misconduct where the evidence shows that several capacity. judge This allows acts intercourse were committed one the evidence which the continuous act of force threats that distinguish “part parcel act are and of the same criminal prove particular on to relying Steele, In unlike indictment from the evi- transaction.”32 us, in two acts of presently has introduced for cases before that the State dence Thus, approximately purposes.30 the trial tercourse occurred other relevant proper twenty apart.33 logic hours miles court can instruct on the State, 903, 792, (1870). State, 26. 33 Tex. 32. 696 S.W.2d 906 See Fisher v. 794 v. Crawford (Tex. 1985). Crim.App. (“The jury may 27. id. taken both See have account, into [offenses] have considered Steele, 523 S.W.2d at 686. See also Be sufficiently the other was that one or 462, State, (Tex. thune 363 S.W.2d 464 v. conviction, a to warrant but that made out (where Crim.App.1962) raped victim re together guilt [it] convinced both defendant....”). peatedly night, Court in one this found that occurred the same acts of intercourse State, v. 36 S.W.3d 123- Francis See that, night, held bed in the same in such (Tex.Crim.App.2000). 25 required). See a election also Ledes no (Tex.Crim. at 707 746 S.W.2d 772-73. ma 181 S.W.2d 29. See (where acts of inter App.1944) several sexual See Tex.Code Crim. Proc. art. 38.37. accomplished one continuous course were day, one elec act of threats in no force and 1975); (Tex.Crim.App. (1959). required). tion 322 S.W.2d 622 Tex.Crim. appellants the child. Had the hardly applicable of Steele is to the facts fendant and us, in complainants they before which the were requested, urges, would peri- a molested different locations over a contemporaneous have been entitled to years. od months or limiting instruction at the time the extra- testimony came into evi- neous offense Additionally, prece- the State’s other dence.37 could have obtained Because dent, McNutt, merely deals with the ad- at the time of admis- limiting instructions missibility of extraneous offenses as evi- claims, dence, sion of the not the election the State as to for un- appellants’ requests which act of election were being intercourse was relied McNutt, timely. argument, conviction.34 com- is also This plainant testify was allowed to about her unavailing. appellant conversation with the on the allow for the ad Article 38.37 does

night concerning plans she left home their crimes, wrongs mission of other or acts to engage prostitution for her to with However, it be admitted when relevant. appellant acting procurer, as her about his right does not restrict a defendant’s her, suggesting sodomy an act of about have the State elect the incident for which an act of intercourse for hire she had with by forcing it will seek a conviction another man on the night, giving same request limiting defendant to instruction money appellant, to the and about her when the evidence is admitted. The re having prostitution had other dates while appellant.35 quirement upon timely she was with the of an election re The issue admissibility quest McNutt was the of these ex- is well-settled38 and distinct from a offenses, requirement traneous not the limiting purpose instruction. The of a lim Indeed, an election. the State was never iting instruction is to “restrict evidence to even asked to elect.36 Accordingly, the proper scope its and instruct the acc arguments based on Steele ordingly.”39 partly An serves election unpersuasive analysis McNutt are in our salutary purpose; but serves other us, of the cases before where the acts are well, purposes providing explicit notice clearly separate and distinct. defendant, promoting unani limiting mous verdicts. A instruction posits

The State also that Article 38.87 all adequately alone does not serve these of the Code of Criminal Procedure allows purposes. Nor does a defendant somehow crimes, the admission of other election, right waive or forfeit his to an wrongs, or its bearing acts for on relevant advantages, by with all of its attendant his matters such as the state mind of the child, defendant and the failure to instruction at previous and the subsequent relationship opportunity.40 between the de- the absolute earliest State, State, v. 696 S.W.2d 905 v. 165 Tex.Crim. 305 S.W.2d 366 Crawford State, 1985) (1957); (Tex.Crim.App. Hudgins v. 69 S.W.2d 97 State, (1921); (Tex. 235 S.W. Crosslin v. Crim.App.1921). 35. S.W.2d 623-24. 105(a). at 624. 39. Tex.R.Evid. 38.37; 37. Tex.Code Crim. Proc. art. Rankin v. limiting It is course conceivable that a State, (Tex.Crim.App.1996). instruction, 974 S.W.2d 707 requested given at the time evidence was ad- the extraneous misconduct 769; mitted, essentially of an could render the lack Crawford (Tex.Crim.App.1985); error. This does 696 S.W.2d 903 Bates election later on harmless trial court must order the State argues that a dant the Similarly, the State election, lack regardless make its serves as a de to jury charge valid facto alone, evidentiary rulings jury A of erroneous jury charge election. juncture It at this that the not afford the defendant with instructions. is does it can provided by put that is a valid notice so that requisite notice defense needs A by argue to timely vigorous election State. forward a defense election, a de be charge challenges cannot be some the evidence facto given until the cause the instruction is not all of of the State’s case. or the elements require trial. would not end of This Additionally, an election allows a defen- chief, case in when State to elect after its in- for a request dant to tailor know the evidence it the defense needs to craft that judge struction and the trial to challenge spe in must refute order of the State’s theo- instruction on the basis in The defendant cific act the indictment. ry proving its case. the exact crime he

must be made aware of out, notice at the defending against is to ensure appeals points As the court of evidence, if the defen end of the State’s election at the close request Farr did not A and an requests. jury charge dant so not move case.42 Farr did of the State’s interchangeable not election are of all evidence. until the close election to elect at context. The State is then, request whether his question, properly when the close its evidence required by the timely, election was requested. Undoubtedly, if Farr had rule of O’Neal.43 at the close of the

petitioned for election Application ii. of O’Neal evidence, the trial court would have obligated been the State to the court of agree We therefore with Farr did not move at that time. Because in both appeals that the trial court erred until the close of all for election the State to failing cases to an election at the Farr was not entitled applies set forth in O’Neal elect. The rule However, evidence. of the State’s close has facts of these cases. The State to an unanimous Farr was still entitled this, to privilege, in a case such as to an right his preserved verdict. He stage until such the devel- delay election by calling for an elec unanimous verdict give as would opment of the evidence of the all evidence. tion at the close deter- opportunity intelligently Therefore, timely inso was Farr’s prefers transaction it mine to a unanimous far as he was entitled But, for the rea- rely for a conviction.41 verdict, trial court had an obli and the sons set forth the court require the State to elect at that above, gation to once rests its case listed chief, juncture. of a defen- timely request on the mean, course, the act the close of the State's would that the defendant viz: relying for convic- upon which the State requested election. That entitled to his not be O’Neal, su- See election, be unmistakable. is, tion would trial court requested an if he pra, at 772. give But if a clearly err not to it. would provided at the had been instruction O’Neal, 746 S.W.2d at 771. 41. that suffi- evidence was admitted time the ciently act which the made clear the 898, Farr, n. 3. conviction, S.W.3d at 42. 140 the trial relying for State was might for the same error be harmless court’s O’Neal, at 772. supra, at 43. we stated in reasons Accordingly, we affirm the judgment touching) and six members ap- convicted court of appeals appellants, as to both that pellant on genital-touching offense the trial (while court erred in failing the other six believed he was inno- the State to elect the incidents cent of the genital-touching). We held it would convict. turnWe now to evaluate right this violated Francis’s to an whether the court of applied the jury separate unanimous verdict47 his correct standard to evaluate harm in these opinion joining opinion, the Court’s Judge cases. right Womack identified as one of state constitutional dimension.48 Proper Analysis C. Harm danger A similar arises when The State claims that the court presented multitude of incidents are erred in conducting a constitu jury required and the State is not to elect. analysis. tional harm analysis Such an jurors Six could convict on the basis of one requires a reviewing court to un reverse incident and six could convict on another beyond less it finds a reasonable doubt (or others). While each of the incidents the error did not contribute to the presented may constitute the commission slight conviction or had but Al effect.44 offense, of a jury sexual abuse must though directly we have not decided the agree on one distinct incident in order proper analysis elect, harm for failure to render a unanimous verdict.49 Consider election, requiring the reasons for ation of these incidents without an election precedents, our guidance. offer jeopardizes right the defendant’s to a example, For we examined unani- jury unanimous guaranteed by verdict as jury State, mous requirement in Francis v. Constitution, though Texas even in which charge stated that the may extraneous incidents be admissible appellant “in engaged sexual contact purposes other under Article 38.37 touching genitals the breast or of’ the Code of Criminal Procedure.50 When the victim.45 The State introduced evidence of violated, Texas Constitution is as it was four separate incidents. In two different us, proper analysis the case before is incidents, the appellant touched the vic- provided by Appellate Rule of Procedure tim’s separate occasions, breasts. On two 44.2(a). appellant touched the genitals. victim’s In addition protecting unanimity single There was never a alleged incident verdict, of the which the an election is also appellant touched both the provide adequate breasts and genitals of the order no- victim.46 In that, opportunity we held tice and an charging defend. The disjunctive deprivation offenses by using implicates notice also of fun- “or,” term possible that six damental principles, members constitutional viz: appellant process convicted due due course of law. As the (while breast-touching Supreme said, offense the other principle Court has “No six believed he was innocent of procedural the breast- process clearly due is more es- Tex.R.App. Id., 44.2(a). 44. 6; V, P. Const, § n. art. Tex. added). (emphasis 45. 36 S.W.3d at 122 Ngo 49. See S.W.3d (Tex.Crim.App.2005) Id., at 124. at 125. 50.Id. KELLER, P.J., specific concurring than a

tablished that notice of filed KEASLER, in in and charge, opinion and a to heard a trial chance be HERVEY, JJ., joined. charge, if of the issues raised desired, among are the constitutional I Although agree with result every pro- in criminal rights of accused a Court, disagree I reached with ceeding courts, in all state or federal.”51 regarding some of its comments how the

Accordingly, we failure find that the to timing for an reasons election relate timely the State to elect re- sets forth of an election. The Court four error, in quest results constitutional says reasons for election rule court of indeed that the re- requiring an support these reasons elec- unless quired to reverse the convictions the end (upon timely request) tion at beyond a doubt that found reasonable But all case-in-chief.1 while four error did not contribute to the convictions an support requiring reasons election at Accordingly, slight or had but effect.52 point, the fourth reason —notice some of the correct stan- applied court supports requiring an to the defendant — analyses in harm conducting dard its rests. election at the time the State in Phillips found cases of the error protecting The first accused reason — Farr. of extraneous of- from the introduction suggests that election should be fenses — III. Conclusion made when the offers the extrane- judgments affirm the of the court We of question. ous-offense in evidence But this appeals in both cases.53 point in time formulated a cannot be as (1) general rule often the because accused KELLER, P.J., concurring filed a from the protection is not entitled to intro- opinion, which KEASLER and (2) offenses,2 as duction extraneous HERVEY, JJ., joined. out, will points often Court J., WOMACK, develop entire case-in-chief be- need its concurred. 201, Arkansas, simply comply the defendant’s need with 333 U.S. 51. Cole (1948). against incident particular for notice 92 L.Ed. 644 S.Ct. defend, must also to insure that which he judge assay a the trial will with 44.2(a). P. Tex.R.App. view to whether the defendant committed a offense, potentially discrete and not convict points We are not unmindful of Still, being general. him for as criminal Presiding Judge has concerns that Keller ex- out, Judge points requirement, Keller such a thoughtful concurring opinion. pressed in her implicate at least insofar as it fails state opinion intend to fashion We do not in guarantees federal constitutional and/or rule.” But it does bear inflexible "monolithic unanimity, subject may well be to an case emphasis that the of the State's close 44.2(b) ordinary analysis, Rule harm under point at which an election chief is the in time Procedure, Appellate rather than the Rules of involved. serves all of the interests This best 44.2(a), apply on the facts Rule which we say for an elec- not to a later today. before us in these cases might timely, insofar as it not also be tion unanimity, as addresses concern ("the op. Fourteenth 909-10 1. Court’s analysis of illustrates. See Farr’s case our Appeals aptly forward reasons set Court hand, 912-13, Judge On other ante. juncture”). at this have the State elect out, points no there will be una- Keller nimity at all trial. Even issue in a bench trial, 38.37; may e.g. be 2. See bench an election im- Crim. Proc. TexR. Tex.Code 404(b) portant at the close of the State’s Evid. necessary judge it can which is to enable the intelligently fore determine chief craft an instruction. prefers appropriate limiting transaction it to for con- to viction, specifically limiting But instructions are therefore offenses are (1) only points in trial: why I is authorized at “extraneous.”3 believe that admitted,5 rests, the time is held that it at the evidence O’Neal State before (2) in jury charge.6 An at the is the trial court’s wheth- election within discretion occur end of the State’s case-in-chief would may possi- er to order an election.4 It be former than a to too late for the but sooner ble for trial court abuse its discretion latter. deciding necessary election for the whether order an rests, but before the trial court’s portions opinion, In some of its have to made on a determination would be seems to assume that the “election Court case-by-case particu- basis rather than at a In ac- requirement” is a monolithic rule. Incidentally, lar trial. point preserving tuality, implicat- various considerations are object- on such require error a claim would multiple con- ed evidence of offenses offered, ing at time the evidence was forming to the indictment. Rather than protections against and because intro- engage trial courts exhaustive duction of extraneous offenses are found case-by-case regarding determinations rules, solely any statutes and court fail- when these considerations and what arise early ure to order an at an election such them, imposed to do about we a have error, stage would be non-constitutional requirement that the State elect which analyzed Appellate be Texas under Rule of it do proceed, offense will and that so 44.2(b). Procedure request period at a will serve implicated interests —at end of the ensuring second and third reasons — case-in-chief, later, if requested or proof beyond State’s jury a reasonable doubt and (with jury a case- before submission unanimity support requiring an election — by-case used for occur- approach requests before submission the fact case to rests). ring before the Even when (e.g. charged), finder before is any appellate an court has determined that a earlier. And the jury unanimity in denying request trial court erred apply concern would when there is a elect, such It matters jury. request follows that an at election made, request when the is the close of all whether timely the evidence is if jury, trial is to a which interests are proof beyond a reasonable doubt and impact preservation can error unanimity implicated are underlying the concerns analysis. a harm notice, however, If request. the issue is and/or then at the close of comments, I in the With these concur late, too because time to make use of judgment. Court’s during that notice would be the defense’s case. says

The Court also requiring

election at the end case-in- State, op. See Court's at 912. Moses v. 105 S.W.3d (Tex.Crim.App.2003)(proper instruc- op. (citing 4. See Court’s at 909 O’Neal v. given testimony tion time (Tex.Crim.App. charge). 1988)). 105(a). 5. See TexR. Evid.

Case Details

Case Name: Phillips v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 7, 2006

Citation: 193 S.W.3d 904

Docket Number: PD-499-04, 500-04, 501-04, PD-1575-04, 1576-04

Court Abbreviation: Tex. Crim. App.