IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

I respectfully dissent. Appellant's ground for review claims the charge submitted to the jury allowed a conviction on "less than a unanimous verdict." And, the Court's opinion suggests that appellant's right to a unanimous jury verdict was violated because the trial court denied his requested "conjunctive" charge "aimed at curing the alleged election error." Francis v. State, S.W.2d Slip op. at 8 (Tex.Cr.App. No. 1132-98, delivered this date).

A defendant has no federal constitutional right to a unanimous jury verdict in noncapital cases.⁽¹⁾ State law, however, provides this right.⁽²⁾ With some exceptions not applicable here Article 36.29(a) provides that "[n]ot less than twelve jurors can render and return a verdict in a felony case."

In this case the jury was instructed according to Article 36.29(a), and twelve jurors unanimously rendered a verdict that appellant was guilty of a single felony offense of indecency with a child. The Court's charge, therefore, did not allow a conviction on "less than a unanimous verdict." Because appellant asserts only a violation of his right to a unanimous jury verdict which right was not violated in this case, appellant's discretionary review petition should be dismissed as improvidently granted.

The substantive issue lurking in this case is not jury "unanimity" but jury "specificity" which means what must the jury be unanimous about. See generally Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 2496-98, 2498 fn 5, 115 L.Ed.2d 555 (1991) (setting out minimum "level of verdict specificity" that is "constitutionally necessary"). Schad recognized that characterizing the substantive issue in cases like this as "one of jury unanimity" is erroneous because that fails "to address the issue of what the jury must be unanimous about." Schad, 111 S.Ct. at 2496.

Specifically, is it constitutionally acceptable to uphold the general unanimous verdict convicting appellant of the single offense of indecency with a child based on the combination of alternative findings of his touching the ten-year-old victim's breasts on one occasion and his touching the same victim's genitals on another occasion when each of these acts of indecency are separate offenses under our state law? See id.; Goodbread v. State, 967 S.W.2d 859, 861 (Tex.Cr.App. 1998). In other words, does it violate due process to uphold this unanimous verdict because only six jurors might have believed appellant guilty of one offense (touching the ten-year-old victim's breasts) while the other six jurors might have believed appellant guilty of the other offense (touching the same ten-year-old victim's genitals) even though these hypothetical jurors at the very least unanimously believed appellant unlawfully touched the victim's breasts and genitals at around the same time?

Our state-law election rule requires, upon proper request, the prosecution to elect which act it will rely on for conviction when the prosecution alleges a single offense and it proves separate acts that are "not part of one continuous course of conduct." See generally Crawford v. State, 696 S.W.2d 903, 904-07 (Tex.Cr.App. 1985). A defendant forfeits his right to an election if he does not properly request one. See Espinoza v. State, 638 S.W.2d 479, 480-81 (Tex.Cr.App. 1982); Stahle v. State, 970 S.W.2d 682, 692-93 (Tex.App.--Dallas 1998, pet. ref'd).

Consistent with Schad, our state-law election rule, which has been a part of this State's jurisprudence for a long time, also involves jury "specificity" and not jury "unanimity." For example, in Fisher v. State, 33 Tex. 792, 794 (Tx. Ct. App. 1870), the Court set out one of the reasons for our election rule:

"The defendant was convicted of a felony, but of what particular offense it is impossible to tell. It may have been for the alleged theft of the nineteenth of June, or it may have been for that of the twelfth of June; or, which is more probable, the jury may have taken both charges into account, and have considered that one or the other was not sufficiently made out to warrant a conviction, but that both together convinced them of the guilt of the defendant; and in either case we think the verdict incorrect, and a new trial should have been granted."⁽³⁾

The record reflects the trial court denied appellant's motion to require the prosecution to elect and appellant's requested "conjunctive" jury instruction. This "conjunctive" instruction apparently was meant to "cure" the "alleged" election error but it would have granted appellant more relief than he would have received had the trial court granted the motion to elect. The only complaint appellant presented on appeal to the Court of Appeals was the trial court's denial of the "conjunctive" instruction.

It is not contested in this case that the trial court should have granted appellant's motion to require the prosecution to elect which of appellant's acts of indecency the prosecution relied on for conviction. Instead, the State argues appellant did not properly present or preserve anything in the Court of Appeals as opposed to the trial court because appellant raised on appeal only charge error when he should have raised election error. The State claims appellant's sole remedy would have been to raise election error in the Court of Appeals.

Apparently recognizing that appellant failed properly to preserve any election error in the Court of Appeals, the Court first recharacterizes the error in this case from election error to charge error and then holds the trial court should have given appellant's requested "conjunctive" charge "aimed at curing the alleged election error." If I understand this correctly, the Court's opinion decides the trial court should have given appellant's requested "conjunctive" charge to cure an "alleged" error that the Court never decides was error and which the Court cannot decide was error because appellant did not properly present it in the Court of Appeals. It would seem, however, that in cases like this the best way to cure "alleged" election error is to require a defendant to complain on appeal that the trial court erroneously denied his motion to elect. The Court's holding also is unsupported by case law⁽⁴⁾ and contrary to many years of state practice. This holding unnecessarily gives birth to a whole new body of state law in addition to the already existing body of state law and current practice that adequately protect a defendant against the type of "nonspecific" jury verdict at issue here.

This existing body of state law and current practice suggest that the sole remedy in cases like this is to require the State to elect which act of indecency it will rely on for conviction. This Court has never held or even suggested that a defendant is entitled to a "conjunctive" charge in cases like this. In addition, appellant's requested "conjunctive" charge goes way beyond just curing the "alleged" election error. Putting the State to an election would have required jury unanimity on one or the other acts of indecency. Submitting appellant's requested "conjunctive" charge would have required jury unanimity on both acts of indecency. Appellant was not entitled to this relief of "super-unanimity" because of the "alleged" election error.

The Court, therefore, should dispose of this case simply by deciding appellant pursued the wrong remedy in the Court of Appeals. Instead of claiming on appeal that he was entitled to a "conjunctive" jury instruction, appellant should have claimed on appeal that the trial court erroneously denied his motion to require the State to elect. With appellant having pursued the wrong remedy in the Court of Appeals, the Court, instead of creating a whole new body of law to accommodate this particular appellant, should decide that appellant presented nothing for review in the Court of Appeals and that he presents nothing for review here.

Finally, with the Court having decided the trial court erred in not granting appellant's requested "conjunctive" charge, it now becomes necessary for the Court of Appeals to confront the question of harm. Before addressing the question of harm, it probably is important to note that this verdict satisfies the "constitutionally necessary" level of verdict specificity required by the United States Constitution and Schad.

While Schad decided that some "level of verdict specificity is constitutionally necessary," it did not clearly define or draw the line on what level of verdict specificity is "constitutionally necessary." See Schad, 111 S.Ct. at 2498, 2503 ("impossible to lay down any single analytical model for determining when two means are so disparate as to exemplify two inherently separate offenses"). It is unnecessary to draw precisely that constitutional line of specificity in this case. Although this case involves separate offenses (and not different means of committing the same offense) under state law, the verdict in this case is nevertheless no more constitutionally suspect than the verdict upheld in Schad.

Appellant's acts of touching the ten-year-old victim's breasts and touching the same victim's genitals on separate occasions during the fall of 1992 as part of an overall pattern of sexual abuse by appellant against this same victim are "morally equivalent." See Schad, 111 S.Ct. at 2503-04. The State has not convicted appellant under a charge of "'Crime'" so "generic" that any combination of jury findings such as "embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction." See Schad, 111 S.Ct. at 2497-98.

On this record the differences between appellant's acts are so immaterial that the Constitution does not require them to be treated "as separate offenses" even though our state law treats them as such. See Schad, 111 S.Ct. at 2498.

"To say, however, that there are limits on a State's authority to decide what facts are indispensable proof of a given offense is simply to raise the problem of describing the point at which differences between means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating what the Constitution requires to be treated as separate offenses. (Citation Omitted). Although we have never before attempted to define what constitutes an immaterial difference as to mere means and what constitutes a material difference requiring separate theories of crime to be treated as separate jury findings, there is a body of law in the federal circuits, derived primarily from the decision of (citation omitted), that addresses this problem." Id.⁽⁵⁾

This, of course, does not answer the state-law question of harm from a trial court's erroneously denying a motion to elect or erroneously refusing a requested "conjunctive" charge to cure this "alleged" election error. Because the potential harm here is that the jury may convict even though the evidence does not support a conviction for either offense or act submitted to the jury,⁽⁶⁾ an appellate court should deem election error harmless when the evidence is sufficient to support either of these offenses or acts. Cf. Griffin v. U.S., 502 U.S. 46, 112 S.Ct. 466, 469-470, 473-74, 116 L.Ed.2d 371 (1991); Claassen v. U.S., 142 U.S. 140, 12 S.Ct. 169, 170, 35 L.Ed. 966 (1891). In the absence of anything in the record to the contrary, we should presume the jury unanimously agreed on any offense or act that the evidence supports. See Fisher, 33 Tex. at 794; cf. Griffin, 112 S.Ct. at 469-70, 473-74; Claassen, 12 S.Ct. at 170.

"It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance--remote, it seems to us--that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient." United States v. Townsend, 924 F.2d 1385, 1414 (7^th Cir. 1991).

In summary, appellant forfeited any claim based on any state law or federal constitutional errors (inadequate level of specificity in jury verdict) because he did not pursue on appeal our traditional state law remedy (election) that adequately protects him against these claimed errors. The Court also errs in requiring a trial court to submit a requested "conjunctive" instruction in cases like this to cure "alleged" election error because state law and the constitution do not require it and the "conjunctive" charge goes way beyond just curing this "alleged" error. Finally, appellant could not have been harmed by the absence of a "conjunctive" instruction.

I respectfully dissent.

McCormick, Presiding Judge

Delivered: November 3, 1999

En Banc

Publish

1. See Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).

2. See Article 5, Section 13, Tex.Const.; Article 36.29(a), V.A.C.C.P.; Brown v. State, 508 S.W.2d 91, 93 (Tex.Cr.App. 1974).

3. The potential harm, therefore, from denying a meritorious motion to elect is that the jury may convict even though the evidence does not support a conviction for either offense or act. In this case, however, it actually is more probable that the jury unanimously believed appellant guilty of both acts of indecency in which case the trial court's failure to require the prosecution to elect clearly was harmless.

4. As support for its holding the Court's opinion cites Vasquez, Edwards, and Hill none of which support a holding that in cases like this a defendant is entitled to a requested "conjunctive" charge. See Vasquez v. State, 665 S.W.2d 484 (Tex.Cr.App. 1984); Edwards v. State, 561 S.W.2d 834 (Tex.Cr.App. 1977); Hill v. State, 544 S.W.2d 411 (Tex.Cr.App. 1976). Vasquez involved a sufficiency of the evidence claim based on a jury charge setting out different means of committing the same offense which the Court's opinion says this case does not involve. See Vasquez, 665 S.W.2d at 486-87. The claim in Vasquez was that the evidence was insufficient to support one of these means. See id. This Court decided that in the absence of an objection "based on insufficient evidence" or a motion to elect, the "verdict must be applied to the phase of the offense which is supported by the evidence." See id.

In this case, appellant made no objection "based on insufficient evidence." Even if he did, that would not have entitled him to his requested "conjunctive" charge. And, if Vasquez applies here, it would seem that Vasquez would not require an election or a "conjunctive" charge if the evidence is sufficient to support any of the separate indecency offenses submitted to the jury.

Edwards and Hill are sufficiency-of-the-indictment-to-provide-adequate-notice-of-the-charges cases and clearly do not support the Court's holding in this case. See Edwards, 561 S.W.2d at 838; Hill, 544 S.W.2d at 413. The Court's opinion reads too much into the "absent an objection to the charge" language in cases like Vasquez.

The Court's opinion also cites Espinoza which held a defendant forfeits election error by failing to request an election. See Espinoza, 638 S.W.2d at 480-81. Espinoza clearly does not support the proposition that a trial court is required to provide a "conjunctive" instruction to cure "alleged" election error.

5. It is constitutionally insignificant that Schad involved a single offense as defined by Arizona law while this case involves separate offenses under Texas law. Schad dealt with "what the Constitution requires to be treated as separate offenses." See id. That is an entirely different question than what our state law "requires to be treated as separate offenses." To illustrate, our Legislature could decide tomorrow that the separate offenses at issue in this case constitute a single offense without violating the Constitution or Schad.

6. See Fisher, 33 Tex. at 794.