STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST
COURT OF APPEALS HARRIS COUNTY
RICHARDSON, J., delivered the opinion of the Court in which
KELLER, P.J., and KEASLER, HERVEY, ALCALA, NEWELL, KEEL, and
WALKER, JJ., joined.
Richard Charles Owings, Jr., was convicted by a jury of
aggravated sexual assault of a child and sentenced to
thirty years in prison. The First Court of Appeals reversed
Appellant's conviction, holding that "the trial
court committed harmful constitutional error in failing to
require the State to make an election of the incident upon
which it relied for conviction." We agree that the
trial court committed constitutional error by failing to
require the State to make an election of the incident upon
which it relied for conviction. However, we disagree with the
appellate court's harm analysis. We hold that, under
these particular facts, the trial court's erroneous
failure to require the State to make an election was
harmless. We reverse and remand the case to the First Court
of Appeals to address Appellant's remaining point of
was the step-grandfather of the complainant, K.M.-he was
previously married to K.M.'s maternal grandmother
("Grammy"). Two years after Grammy divorced
Appellant, nine-year-old K.M. disclosed to Grammy that
Appellant had sexually abused her on numerous occasions.
Appellant was arrested and charged with aggravated sexual
assault of a child under the age of fourteen. The indictment
alleged only one incident of sexual abuse in the form of
Richard Charles Owings, Jr., hereafter styled the Defendant,
heretofore on or about January 1, 2010, did then and there
unlawfully, intentionally and knowingly cause the sexual
organ of [K.M.], a person younger than fourteen years of age
and not the spouse of the Defendant, to contact the sexual
organ of the Defendant.
testified at Appellant's trial that she and Appellant
were married for seven years-from 2003 to 2011. She said that
her daughter, M.M., and granddaughter, K.M., lived with them
off and on during that time. Grammy stated that she and K.M.
were very close, and even when K.M. was not living with them
K.M. would often spend the night. Grammy said that she first
became suspicious of Appellant when he would, on occasion,
spend time with K.M. in their bedroom behind locked doors.
Grammy would knock on the door, and it would take a few
minutes for Appellant to come open the door. Grammy
remembered one Thanksgiving when K.M. came to the dinner
table after she had been in their bedroom with Appellant, and
she had a "terrified" look on her face.
mother, M.M., also testified that she remembered specific
times when Appellant and K.M. were in his bedroom with the
door locked. These incidents caused her to be suspicious of
outcry witness was Lisa Holcomb, a forensic interviewer with
the Children's Assessment Center in Harris County. The
following excerpt came from the trial transcript of Ms.
Holcomb's testimony when she was asked to describe in
detail the statements that K.M. conveyed to her about the
alleged sexual abuse:
She said because my Pawpaw, he did a horrible thing to me.
His name is Richard. How is he related to you? He's my
Grammy['s] husband. He would take me when my grandma
would be at work. It's before my mom and dad got
together. He would take me into the bedroom, he would lock
the door and get out his knife and put it by the bed. He
would take my clothes off. He told me if I tried to run away,
he would stab me with his knife. If I told anybody, he would
hurt other little girls. She said, I asked her to tell me
about the knife. She said it was like a pocketknife. He
always kept it by the desk. It was silver and open. She said,
he was sitting on the bed; and he told me to sit on the bed.
I said, tell me everything that happened. And she said he
would push me on the bed and he would get undressed, he would
do horrible things. He would get on top of me and start going
up and down. He took everything off of her. I asked her where
her body was. She said she fell face first. I asked what part
of your body was he on? She said, he was on my private area.
And that was the front of her body. . . . She said, he would
turn me over. I said what part of his body-what part of his
body is on your private area? And she said, his private area.
And I asked, what would he be doing while he was on you like
that? She said, going up and down. And I asked what his
private area was doing? She said up and down. On top of her
body, she didn't like it at all. His private area, she
said was hard and his hands were everywhere. And she
described by motion that he was touching her at her chest at
that time, and he would tell her just-he would just tell her
not to move. I asked her if she was able to do anything or
say anything, and she shook her head no. I asked would
anything happen with his private area? She shook her head,
I said did you ever feel or see anything coming out of it at
all? She said there was stuff coming out [of] it, and it
would be on the bed. When Grammy come [sic] home,
she would bang on the door and tell him to unlock the door,
and he would hurry up and try to hide it with a blanket and
clothes. I asked her how much it would happen? She said a
lot. It happened since I was four. He stopped at eight. When
she was six and seven, she explained that they moved out
[but] that they were still visiting Grammy a lot.
She also disclosed another incident. She related to a time
when she was staying in her Uncle Ty's room, and that her
Grammy and her mom went to another room. They were spending
the night. Her Pawpaw came in there with his knife, and at
that time, he made her do something different, which she
explained was that he took my head and he made me put my
mouth on his derriere. He walked in the room, put his knife
on the desk, took off his clothes and hers. After that he
went up and down on me, then he made me put my mouth on his
private area. And I asked where her body, where
[sic] when uncle walked in, and she described his
was on the pillow, I was right by his private. He was making
me put my mouth on his private. And she said he took my head
and was jamming on it, and at that time she demonstrated by
motioning her hand to the back of her head. She said the room
was very dark. The TV was on, and she explained that he hid
their clothes somewhere. And when my uncle came in, he had
just walked in there, looked at them, closed the door and
walked away. And Pawpaw hurried up and put his clothes on.
She said she was about five or six at that time.
* * *
Then she described the last incident; she was detailed as
saying that this was the time that he had gotten kicked out
of his apartment . . . .
testified that Appellant's sexual abuse of her was
ongoing. Although the court of appeals viewed K.M.'s
testimony as describing four single separate incidents, we
read K.M.'s testimony differently. The first
"incident" K.M. talked about, which was consistent
with Lisa Holcomb's testimony, was actually a description
of what consistently happened on numerous occasions when
Appellant took her into his bedroom and locked the door. K.M.
used words describing how Appellant "would do" the
same thing each time: "He would take my clothes
off" (she said she "would usually wear
pants"); "he'd take [his clothes] off;" he
would "put me on the bed;" "he would get on
top of me;" and "stick his penis in my
vagina." K.M. also described how Appellant "would
put the knife on the night stand" and threaten to hurt
her or someone else if she told anyone: "Once he was on
top of me before he stuck his penis in my vagina, he would
show me the knife." K.M. described how she "would
just lay there." When asked "if Grammy was home at
all during this time, " K.M. responded by saying,
"sometimes when it, when she would come home, that's
when it stopped because there was a lock on the door, so he
would always lock it and so she would bang on the door."
K.M. emphasized that he "always" locked the door.
When Grammy would "bang on the door, " K.M. said
that Appellant "would hurry up and put his clothes on
and have me put my clothes on."
then mentioned three other specific incidents when Appellant
did "the same thing" to her that he always did-take
off her clothes, take off his clothes, and put his penis in
her vagina. But on those other three instances, he also
forced her to perform oral sex on him. The first instance she
described occurred "in Grammy's room, " when
Appellant did "the same thing that he did the first
time, but this time he had [K.M.] put [her] mouth on his
penis . . . . First, he would do the same thing as he would
do, then all of a sudden he forced my mouth on his
penis." Another time, she was in her Uncle Ty's
room. She said she thought it "might have been the only
time someone was there at the house, and [she] was there in
[her] uncle's room, and [she] was watching a movie, and
it was dark outside, and [Appellant] came in and he did, he
did both things to [her]." She described how, on that
occasion in her uncle's bedroom, Appellant took off her
nightgown, he got on top of her, and he put his penis in her
vagina, and then after that he put his penis in her mouth.
K.M. then described a third distinct occasion when Appellant
took her to his father's house. He and Grammy were
divorced. He picked K.M. up from her mother's apartment,
purportedly to take her to an arcade. Instead, Appellant took
K.M. to his father's house. She described how he
"took [her] to his bedroom;" and "stuck his
penis in [her] vagina, and he put [her] mouth on his
testified that, when asked a few times by her mother and
grandmother-who were both clearly suspicious of
Appellant's behavior with K.M.-if anyone was touching her
inappropriately, K.M. would deny that anything out of the
ordinary was going on. K.M. said she did this because she was
afraid of Appellant and what he might do to her. K.M. said
that it was only after Appellant moved out of Grammy's
house that she felt safe enough to disclose the sexual abuse
the State rested, defense counsel requested that the trial
court force the State to elect which "one" of the
"four" incidents they will be relying on to
convict. The trial court denied the election request.
then testified in his defense. He denied committing any
sexual abuse against K.M.:
Q. Did you ever have occasion to do anything sexually
inappropriate [to K.M.]?
Q. Did anything like that ever occur when [K.M.] was five in
A. Absolutely not.
Q. Did you ever point a knife at her?
* * *
Q. Did you threaten to harm other children?
Q. Did you threaten to harm any animals?
A. I would never do that.
Q. [K.M.] also described another occasion when the same thing
happened; do you remember her talking about that?
A. Yes, I do.
Q. Did that ever happen?
Q. Do you know what time, date, place, season she was even
A. Not really.
Q. She also talked about an experience in Tyler's room.
Did you ever do anything inappropriate to [K.M.] in
Q. On any occasion?
A. No, sir.
* * *
Q. And you heard an occasion where [K.M.] told us about what
happened at your father's house. Did anything happen
between you and [K.M.] in your father's house?
A. It did not.
cross examination, Appellant theorized as to why K.M. might
have been lying about being sexually abused by Appellant:
A. What I'm saying is apparently when she's been
asked the same question by her grandmother repeatedly and her
response isn't good enough, eventually she's going to
say something else. So she went ahead and complied; and I
think it built up from there. And bless her heart, she's
in a position now, she's talked herself in a position she
has to defend.
Q. So, you're not saying [K.M.] is lying, you're just
saying [her grandmother] has been coaching her?
A. Yes, [her grandmother] has encouraged her to say this. . .
. She's getting a lot of positive attention. . . .
She's getting a lot of care and attention. She's
getting a lot of special ...