Reversed and Opinion filed July 20, 2017.




                                          In The

                      Fourteenth Court of Appeals

                                 NO. 14-16-00242-CR

                           FREDDY GARCIA, Appellant
                                            V.
                         THE STATE OF TEXAS, Appellee

                     On Appeal from the 174th District Court
                             Harris County, Texas
                         Trial Court Cause No. 0482220


                                    OPINION

       A jury convicted appellant Freddy Garcia of aggravated sexual assault of a
child, and the trial court sentenced him to 45 years’ confinement and a $10,000 fine.
See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon Supp. 2016). In
two issues, appellant contends that: (1) he was denied his right to a speedy trial; and
(2) the trial court erred by failing to require the State to elect at the close of its case-
in-chief which alleged incident of sexual assault it sought to submit to the jury. We
conclude appellant’s right to a speedy trial was not violated, largely because he
acquiesced to the delay when he became a fugitive. However, we are not convinced
beyond a reasonable doubt that the State’s failure to elect which act it relied upon to
pursue a conviction had no or but slight effect on the jury’s verdict. Accordingly,
we reverse the trial court’s judgment and remand for a new trial.

                                   BACKGROUND

      In 1986, complainant was 11 years old when she moved from Mexico to
Houston to live with her mother, two half-brothers, and appellant, her step-father.
Complainant often would be left alone with appellant in the evenings while her
mother went to work. Over the course of the next year, appellant allegedly sexually
assaulted complainant in a series of escalating incidents. Complainant testified at
trial that on one occasion during that time period appellant forced complainant into
their apartment bathroom and penetrated her vagina with his penis.

      On August 16, 1987, complainant’s mother left complainant with appellant
while she went to run an errand. Complainant’s mother returned home early and
found appellant in complainant’s bedroom with his pants down. Complainant’s
mother and appellant argued, and appellant left the apartment and did not return.

      Appellant was arrested the next day and was indicted on August 28, 1987.
The indictment alleged a single count of sexual assault — specifically, that appellant
penetrated complainant’s sexual organ with his own sexual organ on or about August
16, 1987.

      Appellant was released on bond, but an arrest warrant was issued when he
subsequently failed to appear in court. Appellant eluded authorities for 27 years
until he was located in North Carolina and arrested on November 18, 2014.
Appellant was extradited to Texas on January 19, 2015.


                                          2
      The case went to trial on February 5, 2016. A jury found appellant guilty of
aggravated sexual assault of a child and the trial court sentenced him to 45 years’
imprisonment and assessed a $10,000 fine. Appellant timely appealed.

                                       ANALYSIS

I.    Speedy Trial

      In his second issue, appellant contends that his right to a speedy trial was
violated because he was not brought to trial until more than 28 years after he was
indicted. Because this is a threshold issue that would serve as an absolute bar to
prosecution, we address it first. See Barker v. Wingo, 407 U.S. 514, 522 (1972)
(proper remedy for speedy trial violation is dismissal of indictment); Shaw v. State,
117 S.W.3d 883, 888 (Tex. Crim. App. 2003) (speedy trial violation results in
dismissal of the prosecution with prejudice).

      The Sixth Amendment to the United States Constitution guarantees the right
of an accused to a speedy trial. U.S. CONST. amend. VI. In conducting a speedy trial
analysis, a reviewing court looks to the four factors set out in Barker. The Barker
test balances: (1) the length of the delay; (2) the reason for the delay; (3) the
defendant’s assertion of his or her right; and (4) prejudice to the defendant. Id. In
conducting a speedy trial analysis, we review legal issues de novo and review the
trial court’s resolution of factual issues for an abuse of discretion. See Kelly v. State,
163 S.W.3d 722, 726 (Tex. Crim. App. 2005).

      A.     The Length of the Delay

      This first factor is a “double enquiry.” See Doggett v. United States, 505 U.S.
647, 651 (1992). A court first “must consider whether the delay is sufficiently long
to even trigger a further analysis under the Barker factors, and if it is, then the court



                                            3
must consider to what extent it stretches beyond this triggering length.” Hopper v.
State, No. PD-0703-16, 2017 WL 2457442, at *5 (Tex. Crim. App. June 7, 2017).

      To initially trigger a speedy trial analysis, the defendant must show that the
interval between accusation and trial crosses the threshold dividing ordinary delay
from “presumptively prejudicial” delay. Doggett, 505 U.S. at 651-52. Presumptive
prejudice in this context simply means that a delay is facially unreasonable enough
to conduct a full inquiry into the remaining Barker factors. Id. at 652 n.1. There is
no bright-line rule for determining when a delay violates the right to a speedy trial.
Hull v. State, 699 S.W.2d 220, 221 (Tex. Crim. App. 1985). Generally, courts find
a delay approaching one year sufficient to trigger a full inquiry. Doggett, 505 U.S.
at 652 n.1; Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).

      Once the defendant establishes a presumptively prejudicial delay, the
reviewing court must then consider the extent to which the delay has stretched
beyond the threshold. See Doggett, 505 U.S. at 652. This second enquiry is
significant to the speedy trial analysis because the presumption that pretrial delay
has prejudiced the defendant intensifies over time. Id.

      In this case, more than 28 years elapsed between the time of appellant’s
indictment and trial. A delay of 28 years is sufficient to trigger a full Barker analysis.
See Dragoo, 96 S.W.3d at 314. Given the length beyond the threshold, we conclude
that this factor weighs against the State. See Gonzales v. State, 435 S.W.3d 801, 809
(Tex. Crim. App. 2014) (six-year delay weighed heavily against the State).

      B.     Reason for Delay

      The State carries the burden of justifying its delay. Cantu v. State, 253 S.W.3d
273, 280 (Tex. Crim. App. 2008). Valid reasons for delay do not weigh against the
State, whereas bad-faith delays weigh heavily against the State. See Hopper v. State,


                                            4
495 S.W.3d 468, 474 (Tex. App.—Houston [14th Dist.] 2016), aff’d, No. PD-0703-
16, 2017 WL 2457442 (Tex. Crim. App. June 7, 2017).

      The delay here covers two distinct periods. The first period runs from the
time of appellant’s indictment until the appellant’s re-arrest and extradition to Texas
— a span of roughly 27 years. The second period runs from the time appellant came
into the custody of Texas on January 19, 2015, until appellant’s trial on February 5,
2016 — a span of approximately 13 months.

      The State has valid reason for the first portion of the delay; appellant was a
fugitive for nearly this entire period. See id. at 475 (first period of delay, where
“appellant was either on the run or facing trial in Nebraska,” did not weigh against
State); Lott v. State, 951 S.W.2d 489, 494 (Tex. App.—El Paso 1997, pet. ref’d) (a
fugitive “undoubtedly bears at least some fault for the length of the delay”).

      Appellant nevertheless contends that this period of the delay should weigh
against the State because the State was negligent in its attempts to locate appellant.
The evidence demonstrates otherwise. Appellant used a different name and social
security number on at least one occasion when he applied for a driver’s license in
Florida. Investigators periodically searched for appellant, including checking his
last known address on several occasions, searching national databases, placing
wanted ads in newspapers, and featuring appellant on the Crime Stoppers website.
These efforts began in 1987 and continued until 2014 when an investigator with the
Harris County District Attorney’s Office located appellant living in North Carolina.
We conclude the State was diligent in attempting to locate appellant. See Lott, 951
S.W.2d at 495 (State was diligent in attempting to locate appellant where search
covered “many search avenues . . . over the course of thirty years and four
investigations,” despite lengthy gaps between search efforts). Consequently, the
reason for this part of the overall delay does not weigh against the State. See id.

                                          5
(where appellant contended that State should have located him when he received
services at a veterans’ hospital, court concluded that “the State’s failure to continue
with an active investigation which might have detected that Lott had ‘surfaced’
under his own name in order to receive veterans’ benefits in 1986 stemmed not from
a lack of diligence, but from Lott’s own crafty, and successful, twenty-year-old
disappearing act”).

      Regarding the second part of the delay, spanning the period after his re-arrest
but before trial, the record shows that appellant agreed to six trial resets and at one
point requested a trial continuance, which was granted. Appellant therefore is
partially responsible for the second period of delay between his re-arrest and trial,
and this factor weighs neither for nor against the State.

      C.     Assertion of Right to Speedy Trial

      The right to a speedy trial is unlike other rights enshrined in the Constitution
because the deprivation of the right, in some instances, may actually work to the
defendant’s advantage. See Barker, 407 U.S. at 521. As the pretrial delay increases,
witnesses can die, their memories can fade, or they can become unavailable for any
number of other reasons. See Hopper, 495 S.W.3d at 476. If these witnesses
supported the State’s theory of the case, then the prosecution will be impaired, and
that impairment will work to the benefit of the defendant because the State carries
the burden of proof. Id. For that reason, the Supreme Court has recognized that
“[d]elay is not an uncommon defense tactic.” Barker, 407 U.S. at 521.

      Of course, delay also can prejudice the defendant, because with the passage
of time grows the possibility that the defense may lose an alibi witness or access to
other evidence with exculpatory value. Id. at 532. The more seriously that a
defendant perceives a loss of this sort, the more likely he is to complain; accordingly,
the defendant bears “some responsibility to assert a speedy trial claim.” Id. at 529.
                                           6
      The record shows that appellant sat on his rights for more than 27 years before
asserting his right to a speedy trial. The record also shows that for most of that time
appellant was a fugitive. Appellant fled after being released on bond, indicating that
he was on notice as to the charge against him. His flight evidences a lack of desire
for any trial, much less a speedy one. See Hopper, 2017 WL 2457442, at *9
(“Because we have determined that the record supports a conclusion that appellant
knew about his Texas charge, his complete failure to assert his right to a speedy trial
for more than eighteen years suggests that he did not really want a speedy trial.”);
Lott, 951 S.W.2d at 495 (factor weighed against appellant when the evidence
“support[ed] a finding that Lott, knowing of the charges, chose to remain at large for
more than thirty years without ever demanding a trial.”).

      Further, appellant did not adequately assert his rights following his ultimate
re-arrest. Appellant agreed to three resets between January 19 and August 31, 2015,
at which time he filed a motion to dismiss for a speedy trial violation. Following
this objection (to which it does not appear appellant secured a ruling), appellant
agreed to three more resets and on one occasion requested a continuance. This court
previously has held that “[w]e exclude the time covered by agreed resets from the
speedy trial calculation because agreed resets are ‘inconsistent with [the] assertion
of a speedy trial right.’” Smith v. State, 436 S.W.3d 353, 365 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d) (quoting Celestine v. State, 356 S.W.3d 502, 507 (Tex.
App.—Houston [14th Dist.] 2009, no pet.)).

      Consequently, this factor weighs heavily against appellant.

      D.     Prejudice to Appellant

      We review this final factor in light of the interests that the right to a speedy
trial was designed to protect. See Barker, 407 U.S. at 532. The Supreme Court has
identified three such interests: (1) to prevent oppressive pretrial incarceration; (2)
                                          7
to minimize the defendant’s anxiety and concern; and (3) to limit the possibility that
the defense will be impaired. Id. Of these, the last is the most serious because the
inability of a defendant to adequately prepare his case skews the fairness of the entire
justice system. Id.

      Appellant was not imprisoned during the 27 years he was a fugitive, and was
tried within six months of requesting a speedy trial. Therefore, there was no risk of
oppressive pretrial incarceration. See Lott, 951 S.W.2d at 496 (“Finally, Lott was
not incarcerated for the thirty-year period between the original indictment and the
final resolution of this case. Lott’s case was finally disposed of within eight months
after his first, and only, demand for a speedy trial.”).

      Appellant makes no claim of suffering any anxiety or concern. Regardless,
any anxiety or concern suffered during his flight from justice was self-imposed.
Accordingly, the second interest is not relevant here.

      Appellant largely focuses on the third interest. Appellant first contends that
we should presume prejudice resulted from the “excessive delay.” See Doggett, 505
U.S. at 655. Such a presumption may be tempered, however, by extenuating
circumstances, including a defendant’s acquiescence in the delay. See, e.g., Hopper,
2017 WL 2457442, at *9; Dragoo 96 S.W.3d at 315.

      As we explained above, the third factor does not favor appellant and supports
a finding that appellant acquiesced in the delay. Appellant was aware that a charge
was pending against him and yet sat on his rights for more than 27 years despite
having the opportunity to resolve that charge by returning to Texas and demanding
a trial. We conclude that, even if we applied a presumption of prejudice in this case,
the presumption is rebutted because appellant acquiesced in the delay. See Hopper,
2017 WL 2457442, at *9 (“Any presumptive prejudice due to the passage of time
was extenuated by appellant’s acquiescence in the delay and even further extenuated
                                           8
by appellant’s failure to employ a remedy that would have guaranteed him a speedy
trial.”).

       Appellant further contends he was actually prejudiced. Appellant relies
primarily on the State’s destruction of physical evidence in 1998 — specifically, the
destruction of physical evidence that reflected the presence of semen on a vaginal
smear collected from complainant. Appellant argues this destruction prejudiced his
defense because DNA testing of the evidence may have exonerated him.

       Appellant’s argument is speculative. The destroyed evidence could have been
either incriminating or exculpatory and, “[w]ithout knowing the quality of evidence,
appellant can only speculate that the loss has impaired his defense.” See Hopper,
495 S.W.3d at 479. Moreover, appellant used the lack of DNA evidence to cast
doubt on the State’s case. Appellant further argued that the State acted in bad faith
when it destroyed the evidence and a spoliation instruction was included in the jury
charge that permitted the jury to infer that the destroyed evidence was beneficial to
appellant.

       The delay also may have worked in appellant’s favor. Complainant’s mother
died in the interim between appellant’s indictment and trial. The testimony of
complainant’s mother — who walked in on appellant and complainant on August
16, 1987, and thereafter called the police on appellant — may have been more
damaging to the defense than the testimony of complainant, who was 12 at the time
of the incident.

       We conclude that this final factor does not weigh in appellant’s favor. It is
unclear whether appellant suffered actual prejudice, and it appears appellant
received some benefit from the delay.




                                         9
      E.     The Balancing Test

      Having addressed the four Barker factors, we must now balance them. See
Barker, 407 U.S. at 533. “[C]ourts must apply the Barker balancing test with
common sense and sensitivity to ensure that charges are dismissed only when the
evidence shows that a defendant’s actual and asserted interest in a speedy trial has
been infringed.” Cantu, 253 S.W.3d at 281. No single factor is either a necessary
or sufficient condition to the finding of a deprivation of the right to a speedy trial.
Barker, 407 U.S. at 533. “Rather, they are related factors and must be considered
together with such other circumstances as may be relevant.” Id.

      The only factor weighing in favor of a violation of appellant’s speedy trial
right is the first factor: that the delay was excessive. Weighing against a violation
are the second and third factors: that appellant was primarily responsible for the
delay, and that appellant did not assert his right to a speedy trial for more than 27
years while avoiding arrest, and then for seven months after his arrest. The fourth
factor — prejudice resulting from the delay — weighs neither for nor against
appellant.

      Any prejudice appellant suffered as a result of the delay is attenuated by his
acquiescence to the delay. Appellant knew that he was indicted and took special
precautions not to be found by law enforcement, including changing his name and
social security number. Appellant is responsible for more than 27 years of the
approximately 28-year-delay, and appellant agreed to trial continuances covering the
majority of the remainder. Accordingly, it does not appear that appellant truly
desired a speedy trial. See Hopper, 495 S.W.3d at 481. Consequently, after
balancing the four factors, we find no violation of appellant’s right to a speedy trial.
We overrule appellant’s speedy trial issue.



                                          10
II.   State’s Election

      In his other issue, appellant contends that the trial court erred by failing to
require the State to elect at the close of its case-in-chief under which incident it
sought to convict.

      A.     When an Election is Required

      The long-standing general rule is that the State must elect the act that it will
rely upon for conviction when an indictment alleges one sexual assault but more
than one sexual assault is shown by the evidence at trial. See O’Neal v. State, 746
S.W.2d 769, 771 (Tex. Crim. App. 1988). If a defendant timely requests an election
under such circumstances, the trial court must order the State to make its election at
the close of the State’s case-in-chief. Id. at 772. The trial court’s failure to do so is
constitutional error, and we must reverse unless we determine that the error was
harmless beyond a reasonable doubt. Phillips v. State, 193 S.W.3d 904, 913-14
(Tex. Crim. App. 2006).

      Requiring the election forces the State to formally differentiate the specific
evidence upon which it relies as proof of the charged offense from evidence of other
offenses or misconduct it offers only in another evidentiary capacity. Id. at 910.
This allows the trial court to give clearer instruction to the jury on the proper use and
weight to accord each type of evidence. See id. Further, the lack of such an election
implicates fundamental constitutional principles, viz: due process and due course of
law. Id. at 913.

      B.     Was an Election Required Here?

      The State argues that no election was required because only one act of the
kind alleged in the indictment was shown by the evidence. The indictment alleged



                                           11
a single instance of sexual assault involving penetration of complainant’s vagina by
appellant’s penis.

       Complainant testified regarding an incident that occurred in the bathroom at
the second of three apartments in which she lived with her mother and appellant.
Complainant testified that appellant called her into the bathroom, made her take off
her clothes, put his penis in her vagina, and raped her. Complainant did not specify
a date for this incident, but believed she was 11 at the time.1

       The State does not dispute that this constitutes evidence of a penetration as
alleged in the indictment. The State does dispute that any evidence was presented
of a second penetrative assault like that alleged in the indictment. Appellant
contends that at least some evidence was presented from which the jury could have
determined that a second penetrative assault occurred on August 16, 1987, in
complainant’s bedroom.

       Regarding the August 16 incident, complainant testified that her mother left to
run an errand and that appellant followed complainant into her bedroom and pulled his
pants down. Complainant provided conflicting testimony regarding whether appellant
was able to remove her clothes before her mother returned. She first testified that
appellant did take her clothes off, but later could not remember whether appellant was
able to take off her pants and underwear. The following exchange took place regarding
whether penetration occurred on August 16:

       [STATE:] Where was [appellant’s penis] — where was it in relation to
       you?
       [COMPLAINANT:] What do you mean?

       1
           Complainant testified that other non-penetration assaults continued to occur after this
assault, thereby establishing that this assault was not the assault that took place on August 16,
1987. Likewise, the August 16, 1987 bedroom incident took place in the third apartment the family
lived at, and when complainant was 12.

                                               12
      [STATE:] I’m not asking that good. Was he touching you with his
      penis at the time?
      [COMPLAINANT:] I mean, he was forcing me in that moment to try
      to take off my clothes.
      [STATE:] Okay. Was his —
      [COMPLAINANT:] Because I was refusing not to do what he wanted
      me to do. He’s like no, forcing me on top of me and try to take off my
      pants and my underwear.
The State did not follow up and clarify regarding whether penetration occurred.

      Other evidence suggested that penetration did occur during the August 16, 1987
bedroom incident. At trial, the police officer with the juvenile crimes division who
interviewed complainant in 1987 testified that complainant told her that complainant
was penetrated on August 16.         The officer first testified that she remembered
complainant telling her that appellant “got on top of [complainant]” and “put his penis
in her vagina” on August 16. She later testified that, “[o]n the 16th, I don’t know if she
was penetrated, but other days she said she was.” Finally, she testified on redirect (after
reviewing her offense report) that, on the day complainant’s mother caught appellant,
complainant “said that [appellant] put his penis in her vagina a little because her mother
got there.”

      Likewise, a report prepared by the Houston Police Department’s Crime
Laboratory indicated that there was semen present in a vaginal smear taken from
complainant during a sexual assault exam performed on August 17, 1987. As discussed
previously, the semen was never DNA tested and the evidence was subsequently
destroyed, but the jury could have believed this to be some evidence that a penetration
occurred during the August 16, 1987 bedroom incident. No evidence was presented that
complainant — who was 12 years old at the time — was sexually active with any other
individual; the jury therefore may have believed that the semen was appellant’s.


                                            13
         Several times during witness testimony and again at the close of the State’s case-
in-chief, defense counsel objected and requested that the State elect on which act it
would proceed for conviction. The trial court denied the request, incorrectly concluding
that the State was not required to elect until the close of all evidence. We conclude that
at least some evidence was presented of a second assault conforming with the indicted
offense. Accordingly, the State was required to elect upon appellant’s timely request.
The trial court’s failure to require the State to elect at the close of its case-in-chief was
error.

         This error was exacerbated by the closing arguments and the jury charge. At the
close of all evidence, the trial court charged the jury with an instruction that conflated
the bathroom incident and the separate August 16, 1987 bedroom 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
         [complainant], a person younger than fourteen years of age and not his
         spouse, by placing his sexual organ in the female sexual organ of
         [complainant], while inside a bathroom inside an apartment
         [complainant] shared with her mother, brothers, and the defendant, then
         you will find the defendant guilty of aggravated sexual assault of a
         child, as charged in the indictment.
The charge also instructed the jury that the State is not bound by the specific date on
which the offense is alleged in the indictment to have been committed.

         The State argued in closing that appellant “took [complainant’s] virginity
away in a bathroom while her mom was at work,” but also argued that the semen
collected from the August 16, 1987 bedroom incident was helpful to the State
because there was “no other evidence of anyone [else] in that girl’s life,” suggesting
that the semen was appellant’s. The defense highlighted the ambiguity of the charge
in closing:

                                             14
      So, now you’re given a jury instruction talking about what they have to
      prove to you. So, all of the evidence that was presented to you had to
      do with events that happened on August 16th of 1987. But then they
      change gears and now they’re trying to say that there was something
      that happened in a bathroom in some part some apartment [sic] — and
      this is language that you’re going to read — some bathroom, some
      apartment. How in a small apartment with two bedrooms that — I
      mean, where is the evidence here? How do we even know what
      apartment complex, what date it happened on?
Here, the jury charge and closing arguments conflated two incidents; but even if the
jury charge had unambiguously presented only one incident for the jury’s
consideration, a proper jury charge cannot take the place of a timely election. See
Phillips, 193 S.W.3d at 912. Accordingly, we must determine if the failure to require
a timely election was harmful.

      C.     Harm Analysis

      Having concluded that the late election constituted error, we must reverse the
conviction unless we find beyond a reasonable doubt that the error did not contribute
to the conviction or had but slight effect. Id. at 912-14 (citing Tex. R. App. P.
44.2(a)).

      In determining whether the failure to require a timely election was harmful,
we consider the four purposes behind the election rule:

      (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 the defendant was
      guilty;
      (3) to ensure a unanimous verdict as to one specific incident which
      constituted the offense charged in the indictment; and




                                         15
        (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.

Dixon v. State, 201 S.W.3d 731, 733 (Tex. Crim. App. 2006).

        With regard to the first purpose — to protect the accused from the introduction
of extraneous offenses — Article 38.37 of the Texas Code of Criminal Procedure
permits the admission of evidence of relevant extraneous offenses committed by a
defendant against a child victim. See Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon
Supp. 2016); Dixon, 201 S.W.3d at 734; Phillips, 193 S.W.3d at 911. Accordingly,
the first purpose does not weigh in favor of reversal.2

        We conclude that the second and third purposes for requiring the State to elect
do weigh in favor of reversal. There was at least some evidence of two separate
penetrative sexual assaults: (1) the bathroom incident; and (2) the August 16, 1987
bedroom incident. That evidence was presented from different sources, further
increasing the likelihood that the jury might have added up different events and
testimony from different witnesses in rendering their verdict. Although the jury
charge in this case appeared to present only one incident as a basis for conviction,
the charge referenced that the assault occurred both in a bathroom and on August
16, 1987. Because some evidence was presented that penetration may have occurred
both in a bathroom and separately on August 16, 1987, in complainant’s bedroom,
it is possible that the jury convicted based on a combination of the offenses without
believing that the State proved one of those offenses beyond a reasonable doubt, or


        2
          Although evidence of extraneous offenses may be admissible, their admissibility “does
not restrict a defendant’s right to have the State elect the incident for which it will seek a conviction
. . . .” See Phillips, 193 S.W.3d at 911. Here, appellant objected to the State’s presentation of
evidence concerning extraneous sexual offenses and requested that the State be required to elect
whether it sought to convict as to each of those offenses. The trial court did not require an election
on any of the other non-penetrative offenses.

                                                   16
alternatively that some members of the jury convicted based on the bathroom
incident and others based on the August 16, 1987 bedroom incident. See Owings v.
State, 507 S.W.3d 294, 306-09 (Tex. App.—Houston [1st Dist.] 2016, pet. granted)
(where indictment alleged one act on one specific date, but evidence of four distinct
assaults was presented and none of those assaults was alleged to have occurred on
the indictment date, the second and third purposes were not satisfied); Phillips v.
State, 130 S.W.3d 343, 353 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 193
S.W.3d 904 (Tex. Crim. App. 2006) (finding constitutional error where “both
offenses were described in detail more than once . . . yet, it was completely unclear
to the jury which act the State would rely upon for conviction”).

      The fourth purpose — providing notice to the defense of the particular offense
the State intends to rely upon to convict and to afford the defendant an opportunity
to defend — also weighs in favor of reversal. Because evidence of two assaults was
presented, appellant had to defend against both assaults. See Owings, 507 S.W.3d
at 309-10. The evidence presented concerned two discrete instances of penetration,
and it was unclear in the absence of an election which incident the State would rely
upon for a conviction, especially in light of the ambiguous jury charge and closing
arguments.

      We note that this fourth factor does not weigh heavily in favor of reversal
because no evidence was presented at trial that appellant had a different defense to
the separate alleged offenses. Appellant’s defense across the board was that no
sexual assaults ever occurred and that complainant fabricated the offense to get him
out of her home because he was strict with her. His defense also emphasized the
lack of scientific evidence, missing evidence, and poor police investigation
throughout trial. It is unlikely that the jury’s belief of appellant’s defense that no
sexual assault occurred at any time hinged on whether the State elected to designate

                                         17
one instance of sexual assault for its case-in-chief or another. Cf. Taylor v. State,
332 S.W.3d 483, 493 (Tex. Crim. App. 2011) (where the defensive theory was that
no sexual abuse occurred at any time, egregious harm did not result from jury charge
error because the jury either believed the appellant or the victim).

      Because of the State’s failure to elect which act it was relying upon for a
conviction, it is possible that the jury convicted appellant by combining the
bathroom incident and the August 16, 1987 bedroom incident to overcome
reasonable doubt. Likewise, it is possible that some members of the jury convicted
based on the bathroom incident, and others convicted based on the August 16, 1987
bedroom incident. Further, as a result of the State’s failure to make an election
appellant did not have adequate notice of which act the State would rely upon in time
to present his defense, and was therefore required to defend against both potential
offenses. This last violation is somewhat moderated by appellant’s outright denial
of any wrong doing, but that does not excuse the State’s failure to elect.

      Based on the foregoing, we cannot say beyond a reasonable doubt that the trial
court’s error in failing to require the State to timely elect did not contribute to
appellant’s conviction. See Owings, 507 S.W.3d at 310; Phillips, 130 S.W.3d at
353-54. We sustain appellant’s first issue.




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                                       CONCLUSION

       Having determined that the State’s failure to elect which act it relied upon for
conviction at the close of its case-in-chief was harmful error, we reverse the trial
court’s judgment and remand for a new trial.3



                                           /s/    William J. Boyce
                                                  Justice



Panel consists of Justices Boyce, Jamison, and Brown.
Publish — Tex. R. App. P. 47.2(b).




       3
          In a cross-issue, the State requests we reform the judgment. Because we remand for a
new trial, we do not reach this issue.

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