IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 1132-98

JOSEPH CLAYTON FRANCIS, Appellant


v.


THE STATE OF TEXAS




ON DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY


Womack, J., filed a concurring opinion on rehearing in which Mansfield and Johnson, JJ., joined.



I join the Court's opinion. I write to emphasize the importance of the procedural context in which this error was committed.

First the State pleaded in very general terms. In this case there was evidence of four offenses on four occasions, two by the touching of the victim's breast and two by the touching of the victim's genitals. The State could have prepared a four-count indictment. Instead, the Criminal District Attorney prepared a one-paragraph indictment for the grand jury to present. Even a one-paragraph indictment could have alleged that the appellant touched the breast or the genitals. (1) This would have comported with the evidence, since there was no evidence that on any occasion the appellant touched both breast and genitals. Instead the Criminal District Attorney alleged that the appellant touched "the breast and genitals" of the victim, in reliance on our venerable (and now unnecessary) rule that the trial court may charge the jury in the disjunctive even when the State pled in the conjunctive. (2) These choices in pleading were not improper. (3) They are, however, a significant part of what followed.

At trial the State presented evidence of the four incidents, each of which could have constituted an offense under the indictment. When the State rested its case in chief, the appellant requested that the State elect which one act it would rely on. This request was timely and should have been granted. (4) The State elected to rely on two acts. Two is better than four, but not good enough. Our law allows only one offense to be charged in each paragraph of an indictment, information, or complaint. (5) Here the State, having chosen to plead only one paragraph, was required to elect one incident on which to rely. This requirement is not only essential to giving a defendant the requisite notice of the charge against which to defend, it helps to assure that the jury's verdict will be unanimous. Unanimity is required in felony cases by our state constitution, (6) and in all criminal trials by our law. (7)

The appellant again requested an election after the evidence was closed. Such a postponed election can render harmless the earlier denial of a request for election, when the evidence clearly gave notice to the defendant of the act the State will rely on, (8) but not when the evidence was such that the defendant would not have such knowledge for the presentation of his case in chief. (9) It is at least possible that the evidence in this case did not give such notice. But the question is mooted by the trial court's denial of the request.

The combination of the State's form of pleading and the trial court's rulings on the request for election may well amount to reversible error, but the appellant did not complain of them on appeal. Instead he presented the issue of whether the court's charge to the jury was erroneous. (10)

The charge authorized the jury to convict the appellant if it found that he had touched the breast or genitals of the victim. The appellant objected, "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 [the victim].' We would object to using the term 'or' and request that the charge read 'breast and genitals of [the victim].'"

The appellant's requested charge was not the correct charge, because it did not comport with the law and the evidence that I have set out above. The correct charge would have authorized a conviction for one offense. It would have said either "touching the breast," or "touching the genitals," not "touching the breast or genitals" (which, on the evidence in this case, referred to two offenses that were committed in two separate incidents) or "touching the breast and genitals" (which was one offense, but for which there was no evidence). The appellant's requested charge would have led to a verdict of acquittal, if the jury had followed it. But it was better than the charge that was given, which allowed the jury to convict without reaching a unanimous verdict on one offense, as our law requires. (11)

More importantly, in light of the language in which it was couched and in the context of the procedures that had been followed and the evidence in the case, the objection served to call attention to the erroneous use of "or" in the court's charge. (12) I do not understand the Court to hold that this objection would have served to call attention to such an error in any other context than the strange one in which it occurred: a general, one-paragraph indictment that was ill-suited to a multiple-offense trial; an indictment in the conjunctive that could have been in the disjunctive; evidence of multiple offenses, none of which were described by the conjunctive pleading; two denied requests for the State to elect the incident on which it would rely; the State's incorrect decision to rely on two incidents when it had only pleaded one; and the erroneous decision to authorize the jury to convict for either of two offenses when the indictment pled only one.

En banc.

Delivered December 6, 2000.

Publish.

1. See Hunter v. State, 576 S.W.2d 395 (Tex. Cr. App. 1979) (holding that disjunctive pleadings were proper, and overruling all previous cases to the contrary). Accord State v. Winskey, 790 S.W.2d 641 (Tex. Cr. App. 1990).

2. See Hunter, supra note 1.

3. The State and amici curiae argue on rehearing that the indictment was objectionable because it improperly alleged two offenses. State Prosecuting Attorney's Motion for Rehearing at 21-22; State's Motion for Rehearing at 5 n.4; Brief of 34th Judicial District Attorney at 5; Brief of Harris County District Attorney at 1 n.1. But the indictment appears to be a proper one that alleges one offense and allows the State to prove that the sole criminal conduct was either touching the breast or touching the genitals. That the State intended, and would be allowed, to convict the defendant for more than one offense could not be known by the appellant before trial.

4. See Crawford v. State, 696 S.W.2d 908 (Tex. Cr. App. 1985).

5. "A count may contain as many separate paragraphs charging the same offense as necessary, but no paragraph may charge more than one offense." Tex. Code Crim. Proc. art. 21.24(b).

6. See Tex. Const. art. V, 13; Molandes v. State, 571 S.W.2d 3, 4 (Tex. Cr. App. 1978).

7. See Tex. Code Crim. Proc. art. 36.29(a) (felony cases); id., art. 37.02 (misdemeanor cases in district court); id., art. 37.03 (in county court); id., arts. 45.034-.036 (in justice and corporation courts).

8. See O'Neal v. State, 746 S.W.2d 769, 772 (Tex. Cr. App. 1988).

9. See id.; Crosslin v. State, 90 Tex. Cr. 467, 235 S.W. 905 (1921).

10. The State argues on rehearing that this "Court doesn't have jurisdiction to decide, much less remedy, an issue -- election -- which isn't a part of the court of appeals' decision." State's Motion for Rehearing at 3. We do not reverse for the election error. It is necessary to discuss the principles that underlie the requirement of election because one of those principles was violated by the error in the charge.

11. The Court finds "guidance" in opinions in Schad v. Arizona, 501 U.S. 624, 649 (1991), ante at 6,and it "appl[ies] the reasoning" of United States v. Holley, 942 F.2d 916 (5th Cir. 1991), ante at 8. Schad concerned due-process requirements for the definitions of crimes. Holley turned on the requirements of a unanimous verdict that are in the Sixth Amendment and Federal Rule of Criminal Procedure 31(a). I do not understand that by finding these opinions helpful, the Court implies that those federal requirements are identical to our state's requirements for a unanimous verdict.

12. Cf. Williams v. State, 630 S.W.2d 640 (Tex. Cr. App. 1982) (specially-requested charge that was defective still served to call the court's attention to the need to charge on a defensive issue).