Price, J., delivered the opinion of the Court, in which Meyers, Womack,
Johnson, and Keasler, JJ., joined. Holland, J., filed a concurring opinion. McCormick,
P.J., filed a dissenting opinion, in which Mansfield, J., joined and which Keller, J., joined
in part. Keller, J., issued a dissenting opinion.
Appellant was charged with a single count of indecency with a child. At the close of its evidence, the State elected to proceed on two of the four acts of indecency it had offered during its case-in-chief. The trial court denied appellant's repeated requests for the State to elect between these two distinct acts, and also denied a requested jury charge that would require the State to prove that appellant committed both alleged acts of indecency. Appellant was subsequently convicted of one count of indecency with a child. In an unpublished opinion, the Court of Appeals affirmed the conviction, determining that the jury charge merely included different means of committing the charged offense of indecency with a child, not separate acts of indecency. See Francis v. State, No. 2-97-068-CR (Tex. App.--Fort Worth April 16, 1998) (not designated for publication). We granted appellant's petition for discretionary review to consider whether the Court of Appeals erred in holding that the charge submitted to the jury allowing a conviction on less than a unanimous verdict was not error. We will reverse.
Appellant was charged in a single paragraph indictment with one count of indecency with a child.(1) At the close of the State's evidence, appellant requested that the trial court require the State to elect between the four separate and distinct occurrences of alleged indecency. Each of these incidents occurred at a different time and date, with two acts involving an improper touching of the victim's breasts and two acts involving an improper touching of the victim's genitals.(2) The State elected to pursue a conviction on two of the four incidents, one involving the touching of the victim's breasts and one involving the touching of the victim's genitals. Appellant objected,(3) insisting that the general, one-paragraph indictment limited the State to prosecuting only one act of sexual indecency; otherwise, the jury could come to a non-unanimous verdict, with some jurors believing beyond a reasonable doubt that appellant touched the victim's breasts and others believing that he touched the victim's genitals. The trial court overruled appellant's objection.
At the close of appellant's evidence, appellant reiterated his earlier request and asked that the State be required to elect between these two separate acts of indecency. The trial court again refused. Appellant then requested that the jury be charged in the conjunctive: that the State must prove that appellant did "engage in sexual contact by touching the breast and genitals of [victim]." The trial court refused appellant's requested instruction and charged the jury disjunctively, allowing a conviction on a finding that appellant did "engage in sexual contact by touching the breast or genitals of [victim]." Appellant was found guilty and sentenced to five years and a $5000 fine, probated.
Court of Appeals Decision
In its opinion, the Court of Appeals determined that appellant's alleged charge error was rejected by this Court in Kitchens v. State, 823 S.W.2d 256, 257-58 (Tex. Crim. App. 1991). See Francis, slip op. at 4-5. The Court of Appeals explained that charging the jury in the disjunctive is appropriate where alternate theories of committing the same offense are submitted to the jury, as long as there is sufficient evidence supporting either theory. Id. Consequently, the court overruled appellant's point of error. Appellant's motion for rehearing was denied. See Francis v. State, No. 2-97-068-CR (Tex. App.--Fort Worth May 21, 1998) (not designated for publication).
Appellant's sole ground for review in this case avers that:
The Court of Appeals erred in holding that the charge submitted to the jury
allowing a conviction on less than a unanimous verdict was not error. The
charge submitted allowed a conviction upon a disjunctive finding between two
In order to determine if the trial court erred in failing to grant Appellant's jury charge, we must first determine if the two acts of indecency with a child constitute two distinct offenses. This Court recently held that every instance of sexual assault is a separate crime and may be prosecuted in separate trials. See Goodbread v. State, 967 S.W.2d 859, 861 (Tex. Crim. App. 1998). The Goodbread Court cited as authority Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992), a case which determined that it is inaccurate to characterize a defendant's repeated acts of indecency with a child as a single continuing offense under Texas law. Id. at 861. Following these precedents, it is clear that appellant's two alleged acts of indecency with a child were separate causes of action, from which the State should have been required to elect a single cause.
Nevertheless, the Court of Appeals determined that this case was governed by Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991), and the State urges us to follow their decision. In Kitchens, the defendant was charged in the indictment with committing capital murder under two separate theories -- the defendant either shot or strangled the victim to death during the course of either a robbery or a sexual assault. See Kitchens, 823 S.W.2d at 257-58. This Court determined that the State could provide evidence of both at trial, yet charge the jury in the disjunctive and allow a conviction if the evidence was sufficient under either theory. This Court based its decision on the fact that, regardless of whether the defendant killed the victim during a robbery or during a sexual assault, he committed capital murder. The underlying felonies in the capital case were merely different means to commit the same offense. Id.
However, this is inapposite to the case at hand. The instant case involves two separate incidents that cannot be considered one continuing offense. Each of these incidents constituted a separate criminal offense, not merely a different means of committing the same offense. Kitchens is inapplicable to the instant case.
The State argues that Appellant should not prevail because he is not contesting on appeal the trial court's failure to grant the motion to elect. Rather, he is only challenging the trial court's failure to grant his requested charge. We agree that, had Appellant argued on appeal that the trial court erred in failing to grant his motion to elect, he would have been entitled to relief. Where an indictment charges a defendant with only one offense and the State provides evidence of two or more allegedly illegal acts by the defendant -- each of which is an offense for which the defendant may be convicted -- the State is required to elect which act it will rely upon to secure conviction, provided that the accused moves for an election. See Scoggan v. State, 799 S.W.2d 679, 680-81 (Tex. Crim. App. 1990) (testimony by statutory rape victim that she and defendant had engaged in sexual intercourse "two or three hundred times" required State to elect which act it would prosecute); Crosslin v. State, 235 S.W. 905 (Tex. Crim. App. 1921) (when State has privilege of proving several acts of sexual intercourse and avails itself of this right, election is required; otherwise, defendant is left in doubt as to which offense he must defend against).
However, the fact that Appellant has a valid claim regarding the motion to elect does not dispel the fact that he has a valid claim regarding the jury charge. The trial court also erred in failing to grant Appellant's motion to elect. Having done so, the trial court could have cured any error by granting Appellant's requested charge. It did not do so. Therefore, Appellant has two valid arguments on appeal: that the trial court erred in denying the motion to elect and that the trial court erred in denying the jury charge. Appellant chose to pursue the latter claim and his contention is valid. The mere fact that the former claim also would have been valid does not foreclose Appellant's receiving relief from the latter.
This Court has held that it is proper for an indictment to allege different ways of committing an offense in the conjunctive, yet to have the jury be charged disjunctively. See Vasquez v. State, 665 S.W.2d 484, 486-87 (Tex. Crim. App. 1984) overruled on other grounds by Gonzalez v. State, 723 S.W.2d 746 (Tex. Crim. App. 1987); Edwards v. State, 561 S.W.2d 834, 838 (Tex. Crim. App. 1977); Espinoza v. State, 638 S.W.2d 479 (Tex. Crim. App. 1982). However, each of these cases involved a defendant who failed to alert the trial court to the potential election or charge error. See Vasquez, 665 S.W.2d at 847 (general verdict proper where appellant failed to object to the charge or move to force the State to elect); Edwards, 561 S.W.2d at 838, n. 3, (defense should seek a clarification, secure an instruction or request an election by the State), citing Hill v. State, 544 S.W.2d 411, 413 (Tex. Crim. App. 1976); Espinoza, 638 S.W.2d at 480-81 (conviction may stand under disjunctive indictment where appellant failed to request State election).
Clearly, appellants properly preserve charge errors by objecting to the proposed disjunctive charge or requesting a conjunctive charge. In the present case, appellant repeatedly requested that the trial court require the State to elect a single cause of action. After being thrice denied, he requested a specific jury charge aimed at curing the alleged election error. In so doing, appellant properly preserved this error for appeal.
Therefore, the Court of Appeals erred in finding that Kitchens controlled the charge issue presented by the instant case. The two separate incidents of indecency in this case cannot be found as simply differing means to commit one offense -- they are two separate criminal offenses. Thus, the trial court erred in not giving the requested charge. We vacate the decision of the Court of Appeals and remand this cause for a harm analysis consistent with the findings of this opinion.
Date Delivered: November 3, 1999
1. The indictment alleged that appellant:
on or about the 1st day of November 1992, did then and there intentionally, with the intent to arouse and gratify the sexual desire of said defendant, engage in sexual contact by touching the breast and genitals of [victim], a child younger than 17 years and not the spouse of the defendant.
2. At oral argument, the State's attorney averred that it was not clear from the record that the four alleged acts of indecency were separate and distinct occurrences. However, a careful reading of the transcript makes it clear that all the parties at trial, including the prosecution, believed that these four occurrences were distinct and separate incidents, occurring on separate days. In fact, in attempting to describe the two alleged acts that it was electing, the prosecution emphasized the differences between them:
We will, however, as far as the breast touching is concerned and touching -- fondling by touching the breasts elect to proceed and seek a conviction on the second incident she described where he touched her breast when they were sitting in a recliner in the Cornerstone Apartments when she was in the fifth grade.
As far as the genital touching, we would elect to seek a conviction on [sic] second incident she described in the fifth grade in the bed when he rubbed her genital area and tried to stick his hand down into her pants or her shorts and panties.
The State did not argue that these were not separate acts occurring on separate days; rather it argued, erroneously, that each was merely a different means to commit the crime of indecency with a child.
3. Again, at oral argument the State's attorney averred that the record was not clear that appellant had requested an additional election. The trial transcript refutes this claim:
Judge, we would still urge that [the State] be required to elect between the two manners of committing the offense between touching breasts or touching the genitals because the way the indictment is set out in a single count single paragraph, it would authorize the jury to essentially have a non-unanimous verdict if some voted -- believed beyond a reasonable doubt he touched breasts and another group believed beyond a reasonable doubt he touched genitals.