NO. 1132-98







Holland, J., delivered a concurring opinion.



The majority holds that the trial court erred in not requiring the State to elect between two instances of indecency with a child and by not giving the requested charge. Therefore, the majority concludes that the court of appeals was incorrect in its analysis of this issue. While I agree that the court of appeals erred in its conclusion, I do not believe the majority directly answers the question on which this Court granted review. Specifically, I disagree with the majority's discussion of any potential election error in reaching its conclusion that the charge given was erroneous.

The ground on which this Court granted discretionary review is:

The Court of Appeals erred in holding that the charge submitted to the jury allowing a conviction on less than an unanimous verdict was not error. The charge submitted allowed a conviction upon a disjunctive finding between two separate offenses.

When reviewing this issue, the Second Court of Appeals held that the charge was not erroneous. Finding Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991), directly on point, the court concluded that the disjunctive charge was appropriate in appellant's case. The State argues that the court of appeals was correct in applying Kitchens to the instant case. I disagree with the court of appeals and the State.

In addressing appellant's ground for review, it is first necessary to decide whether or not appellant preserved error. At the close of the evidence in the guilt/innocence portion of the trial, the trial court asked, "Do you have any objections?" Appellant responded,

In light of the Court's ruling that there will not be an election, we would object to the language that says "engage in sexual contact by touching the breast or genitals of [victim]." We would object to using the term "or" and request that the charge be read "breast and genitals of [victim]."

The court overruled the objection. Because appellant's requested change to the charge was sufficient to notify the trial judge of appellant's objection to the charge, error was preserved. See Tex. Code Crim. Proc. Ann. art. 36.15; see also Chapman v. State, 921 S.W.2d 694 (Tex. Crim. App. 1996) (holding that a requested instruction was sufficient to apprise the trial judge of the objection to the charge and, therefore, error was preserved).

Having preserved error, appellant complains on discretionary review that the jury charge allowed a conviction on less than an unanimous verdict. Like the majority, I find Kitchens inapplicable to the instant case. In Kitchens, the defendant was charged with capital murder and sentenced to death. On appeal, he complained that the trial court erred in submitting alternative theories of committing capital murder in a single application paragraph in the charge. He argued that the verdict was not unanimous since six members of the jury may have found him guilty of murder in the course of sexual assault, while the other six members of the jury may have found him guilty of murder in the course of robbery. See id. at 257. The Court stated that "[i]t is appropriate where the alternate theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted." Id. at 258.

Unlike the charge in Kitchens, however, alternate theories of committing the same offense were not submitted to the jury in the instant case. Rather, two separate offenses were submitted to the jury in the disjunctive. The relevant portion of the charge read:

[I]f you find from the evidence beyond a reasonable doubt that on or about the 1st day of November, 1992, in Tarrant County, Texas, the Defendant, JOSEPH CLAYTON FRANCIS, did . . . engage in sexual contact by touching the breast or genitals of . . . .

(emphasis added). The State introduced evidence of four separate incidents. In two different incidents, the appellant touched the victim's breasts. In two separate occasions, the appellant touched the victim's genitals. There was never an incident alleged in which the appellant touched both the breasts and the genitals of the victim.

When appellant requested that the State be asked to elect, the State proceeded on the incident in which the appellant touched the victim's breast and the second incident in which the appellant touched the victim's genitals. These incidents constitute two separate offenses. See Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992) (stating that "those who commit multiple discrete assaults against the same victim are liable for separate prosecution and punishment for every instance of such criminal conduct."). Therefore, Kitchens, which considered one offense with varying theories of commission, does not apply here.

The United States Supreme Court's holding in Schad v. Arizona, 501 U.S. 624 (1991), also does not control the instant case. Schad examined a similar issue to the one presented in Kitchens. The plurality concluded that a conviction under a jury instruction, which did not require agreement on whether the defendant was guilty of felony murder or premeditated murder, was not unconstitutional. See id. at 627. Portions of the Schad opinion lend guidance, however, in solving appellant's issue. Justice Scalia stated in his concurrence,

As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission. That rule is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict. When a woman's charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her (and caused the fire accidently in his hasty escape), while six others believe he left her unconscious and set fire to kill her. While that seems perfectly obvious, it is also true as the plurality points out, that one can conceive of novel "umbrella" crimes (a felony consisting of either robbery or a failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process.

Id. at 649-50 (Scalia, J., concurring) (citations omitted). Justice Scalia further observed that "[w]e would not permit . . . an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday, despite the 'moral equivalence' of those two acts." Id. at 651 (Scalia, J., concurring). The plurality in Schad also discussed the "umbrella" crimes stating, "nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of "Crime" so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction." Id. at 633.

Relying on the preceding language, the Fifth Circuit distinguished the issue in United States v. Holley, 942 F.2d 916 (5th Cir. 1991), from the issue in Schad. In Holley, the defendant was charged with two counts of perjury, and each count alleged multiple statements. At trial, the defendant objected to the jury instructions because the court failed to instruct the jury that it must be unanimous as to one particular statement in each count to find the defendant guilty. His objection was overruled. See id. at 920-22.

The Fifth Circuit first examined the importance of an unanimous jury verdict. An unanimous jury verdict ensures that the jury agrees on the factual elements underlying an offense - it is more than mere agreement on violation of a statute. See id. at 925 (citing McCoy v. North Carolina, 494 U.S. 433 (1990) (Blackmun, J., concurring)). The unanimity requirement is undercut when a jury risks convicting the defendant on different acts, instead of all agreeing on the same act for a conviction. See id.

Looking at the Schad opinion, the Holley court noted that the two cases entertained different factual scenarios. In Schad, one single killing occurred. But in Holley, a single count encompassed two or more separate offenses. Because the jury instruction did not require jurors to agree on the falsity of one particular statement, the court concluded that "there was a reasonable possibility that the jury was not unanimous with respect to at least one statement in each count." Id. at 929.

Applying the Holley reasoning to the instant case, I conclude that the jury charge given in appellant's case created the possibility of a non-unanimous jury verdict. The breast-touching and the genital-touching were two different offenses, and therefore, should not have been charged in the disjunctive. By doing so, it is possible that six members of the jury convicted appellant on the breast-touching offense (while the other six believed he was innocent of the breast-touching) and six members convicted appellant on the genital-touching offense (while the other six believed he was innocent of the genital-touching). Appellant was entitled to an unanimous jury verdict. See Brown v. State, 508 S.W.2d 91 (Tex. Crim. App. 1974). Hence, the trial court erred by charging appellant in the disjunctive.(1)

I agree with the majority that the court of appeals erred in applying Kitchens to the instant case and join the majority in remanding this cause for a harm analysis. But because appellant did not properly raise any potential election error before this Court or the court of appeals, I believe the majority fails to directly answer the issue on which we granted review. Therefore, I concur in this Court's judgment.



DATE: November 3, 1999

1. Although I agree with the majority that the charge given was erroneous, I express no opinion as to whether the requested charge should have been given. That issue is not before this Court.