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Garcia v. State

Court of Criminal Appeals of Texas

November 20, 2019

FREDDY GARCIA, Appellant
v.
THE STATE OF TEXAS

          ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEAL SHARRIS COUNTY

          Court in which Hervey, Richardson, Newell, and Walker, JJ., joined. Yeary, J., filed a concurring opinion in which Slaughter, J., joined. Keller, P.J., concurred. Keel, J., dissented.

          OPINION

          Keasler, J.

         Freddy Garcia was indicted on one count of aggravated sexual assault, but at trial, the victim described two separate sexual assaults. When the State rested its case in chief, Garcia asked for an election between the two incidents. This request was denied. The court of appeals held that denying Garcia's request was error of constitutional magnitude and reversed Garcia's conviction. We agree that the trial judge committed constitutional error but disagree that the error was harmful. We therefore reverse the court of appeals' judgment and affirm Garcia's conviction.

         I. BACKGROUND

         A. Pre-trial and trial.

         In 1987, the State filed an indictment against Garcia alleging that, on or about August 16, 1987, he penetrated his child step-daughter's female sexual organ with his own. Upon making bond, Garcia absconded. He was found in 2015 and extradited to Harris County.

         At trial, the victim testified to multiple instances in which Garcia acted in a sexually suggestive, indecent, or assaultive manner toward her. Each time the victim began describing a different indecent or sexually assaultive act, Garcia moved that the State be required to make an election-to pick which incident it would ultimately ask the jury to base its verdict upon. Two of these incidents warrant description here.

         First, the victim recounted an incident wherein Garcia called her into the bathroom and "raped" her-penetrated her sexual organ with his own. The victim estimated that she was around eleven years old when this assault occurred. The court of appeals referred to this as "the bathroom incident." The victim also recounted an incident wherein Garcia assaulted her in her bedroom ("the bedroom incident"). The victim estimated that this assault occurred on or about August 16th of 1987, as alleged in the indictment, when she was twelve.

         When the State rested its case, Garcia re-urged his motion for election. The State opposed the motion, arguing that the proper time for an election is at the close of all evidence, and the trial judge agreed. Garcia offered to produce a citation to demonstrate his right to an election at the end of the State's case, but the trial judge declined, continuing to hold that he would not order an election until both sides rested and closed.

         So, at the close of all the evidence, Garcia once again asked the trial judge to make the State elect which incident it would rely upon for conviction. To satisfy this request, the State submitted, and the trial judge adopted, an application paragraph specifically focused upon the bathroom incident:

Now, if you unanimously find from the evidence beyond a reasonable doubt that on or about the 16th day of August, 1987, in Harris County, Texas, the defendant, Freddy Garcia, did then and there intentionally or knowingly cause the penetration of the female sexual organ of [the victim] . . . by placing his sexual organ in the female sexual organ of [the victim], while inside a bathroom inside an apartment [the victim] shared with her mother, brothers, and the defendant, then you will find the defendant guilty[.]

         The jury found Garcia guilty of aggravated sexual assault of a child.

         B. Appeal.

         On appeal, Garcia complained that the trial judge committed reversible constitutional error by refusing to order an election when the State rested its case in chief. The State responded by arguing that the trial judge had not erred because there was scant evidence that genital-to-genital penetration occurred during the bedroom incident. It also argued that, if the trial judge did err, the error was harmless beyond a reasonable doubt. The State did not initially take issue with Garcia's assertion that the trial judge's error should be measured against the constitutional harm standard laid out in Rule of Appellate Procedure 44.2(a).[1]

         The court of appeals, following our opinion in O'Neal v. State, held that the trial judge should have ordered an election at the end of the State's case in chief.[2] The court of appeals also concluded that, under Phillips, the trial judge's failure to order an election when the State rested was constitutional error, subject to a Rule 44.2(a) harm analysis.[3] Finally, citing our opinion in Dixon v. State, the court of appeals "consider[ed] the four purposes behind the election rule" in assaying the record for harm: (1) to protect the accused from the introduction of extraneous offenses; (2) 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 that the defendant was guilty; (3) to ensure a unanimous verdict as to one specific incident which constituted the offense charged in the indictment; and (4) to give the defendant notice of the particular offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend.[4]

         The court of appeals first observed that, because Article 38.37 of the Code of Criminal Procedure "permits the admission of evidence of relevant extraneous offenses committed by a defendant against a child victim," the first factor did not weigh in favor of reversal.[5] With regard to the second and third factors, the court of appeals found that there was a significant risk that the jury rendered a mixed-and-matched or non-unanimous verdict because the jury instructions "conflated the earlier bathroom incident and the separate August 16, 1987 bedroom incident."[6] This was essentially because, although the charge referred specifically to an incident occurring "in a bathroom," the evidence showed that the bedroom incident, not the bathroom incident, occurred "on or about the 16th day of August, 1987." Finally, the court found that the fourth factor also weighed in favor of reversal, albeit "not [as] heavily," because without a timely election Garcia "had to defend against both assaults"-the bedroom incident and the bathroom incident.[7] Because it could not say that the trial judge's error was harmless beyond a reasonable doubt, the court of appeals reversed Garcia's conviction and remanded the case for a new trial.

         C. Petition for Discretionary Review

         In this petition for discretionary review, the State contends that the court of appeals' analysis was flawed in two respects. First, the State argues that the court of appeals should not have applied the Rule 44.2(a) constitutional harm standard to the trial judge's election error in this case. The trial judge essentially instructed the jury that, to convict Garcia of aggravated sexual assault, it had to unanimously agree upon the bathroom incident. The State argues that this instruction satisfied Garcia's right to a unanimous verdict and his right to be convicted only upon proof beyond a reasonable doubt. Thus, the State argues that the trial judge's error is not rightly characterized as a total failure to order an election; it is better understood as a failure to order an election in a timely fashion. And while a total failure to order an election might be subject to a constitutional harm analysis, a "merely delayed" election is non-constitutional error that should be reviewed under a Rule 44.2(b) non-constitutional harm analysis.[8]

         The State also argues that the court of appeals was mistaken when it concluded that the application paragraph in the court's charge conflated the bedroom incident with the bathroom incident. According to the State, the mere fact that the application paragraph contained the August 16, 1987 date did not suggest to the jury that it was free to mix and match between the bathroom incident and the bedroom incident. Instead, the State argues that the jury instructions adequately focused the jury's deliberative attention on a single event, the bathroom incident, and that attempting to utilize an "on or about" date more closely correlated with that incident would have required the court's instructions to deviate from what was authorized by the indictment. We address each ground in turn.

         II. ANALYSIS

         In a sexual assault trial, where one act of intercourse is alleged in the indictment and more than one act of intercourse is shown by the evidence, the State must elect the act upon which it would rely for conviction.[9] The trial judge retains the discretion to order the State to make an election at any time before the State rests its case in chief.[10] But once the State rests, in the face of a timely request by the defendant, the trial court must order the State to make a decision. "Failure to do so constitutes error."[11]

         For brevity's sake, we will occasionally refer to the rule requiring the State to make an election at the end of its case in chief as "the rule of timely election," or "the timely election rule." For purposes of this opinion, a timely election means an election made at the end of the State's case in chief.

         A. Did the trial judge commit constitutional error?

         In Phillips v. State, we identified a defendant's due-process right to adequate notice and his due-process right to present a defense as two of several constitutional rights that are implicated by a failure to order a timely election upon request.[12] So, if followed, Phillips would seem to decide this issue: Based on his due-process right to receive adequate notice and his due-process right to present a defense, Garcia had a constitutional right to timely election. By requesting an election at the end of the State's case in chief, he asserted that right at the appropriate time, and the trial judge erred to deny his request. As a result, constitutional error occurred, subject to a Rule 44.2(a) harm analysis.

         We have previously said that "where a harm analysis is appropriate, claims of constitutional error are subject to constitutional harm analysis and all other claims of error are subject to non-constitutional harm analysis."[13] Constitutional errors that a party or reviewing court considers de minimis are not, for that reason alone, subject to non-constitutional harm analysis. They are simply less likely to be found harmful under the appropriate constitutional harm analysis. In this case, the fact that the court's charge focused the jury's attention on a single criminal incident may have vindicated Garcia's right to a unanimous verdict, but it did not somehow un-violate his due-process right to adequate notice at the end of the State's case in chief.

         It follows that the only question we need to answer in this ground is whether we will continue to adhere to Phillips. We ordinarily observe the doctrine of stare decisis "to promote judicial efficiency and consistency, encourage reliance on judicial decisions, and contribute to the integrity of the judicial process."[14] An exception is made when we conclude that the precedent in question "was poorly reasoned or is unworkable."[15] So, to decide whether the trial judge's error in this case should be analyzed under a Rule 44.2(a) constitutional harm analysis, we need only decide whether Phillips was poorly reasoned or if its holding has become unworkable.

         We begin by observing that the rule announced in Phillips is hardly unworkable. The "fundamental constitutional principles" of adequate notice and an opportunity to defend require that an election be made when the State rests its case in chief.[16] So, if the defendant asks for an election at that time, the trial judge violates a constitutional right by overruling the request. The defendant can complain of constitutional error on appeal.

         Was Phillips poorly reasoned? We do not think so, at least insofar as it drew a connection between the defendant's right to a timely election and his rights to adequate notice and an opportunity to defend. Phillips forthrightly acknowledged that it was the first opinion to "directly decide[] the proper harm analysis for failure to elect."[17] But it did not decide that issue on a whim. Phillips carefully assayed "the reasons for requiring an election" and this Court's prior precedents on the matter. It then expressly decided that failing to comply with a motion for election at the end of the State's case in chief offends certain "fundamental constitutional principles"-namely, the defendant's right to receive adequate notice and an opportunity to defend himself.[18]

         The State does not really attempt to assail Phillips's logic in this regard, but it does offer a hodgepodge of arguments for why, despite Phillips, a "merely delayed" election should be subject to non-constitutional harm analysis. For example, the State argues that delaying the election was a "procedural [error] rather than a substantive error," which supposedly "raises the question of whether the constitutional harm standard should still apply." We are not persuaded. The fact that a particular right can be characterized as "procedural rather than substantive" does not mean-indeed, does not even really suggest-that it is of ...


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