             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. PD-0035-18



                                FREDDY GARCIA, Appellant

                                               v.

                                   THE STATE OF TEXAS



               ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FOURTEENTH COURT OF APPEALS
                               HARRIS COUNTY

       Y EARY, J., filed a concurring opinion in which S LAUGHTER, J., joined.

                                CONCURRING OPINION

       As it did two years ago in Owings v. State, 541 S.W.3d 144, 150 (Tex. Crim. App.

2017), the Court today holds that the trial court’s error in failing to grant Appellant’s request

to force the State to elect which particular act of sexual assault it would rely upon to prove

the charge against him was harmless. In so holding, the Court once again employs the

standard for determining whether trial error is harmful contained in Rule 44.2(a) of the Rules

of Appellate Procedure. T EX . R. A PP. P. 44.2(a). This is the rule that governs errors of
                                                                                GARCIA — 2


constitutional dimension, which mirrors the standard the United States Supreme Court has

mandated for errors of federal constitutional dimension, in Chapman v. California, 386 U.S.

18 (1967). For reasons that I developed in my concurring opinion in Owings, I remain

dubious, at best, that this constitutes the appropriate harm standard for election error. See

Owings, 541 S.W.3d at 154–56 (Yeary, J., concurring) (arguing that election error neither

definitively implicates the constitutional right to a unanimous jury verdict nor bedrock due

process notice requirements).

       But what was true of Owings is also true in this case: It does not ultimately matter

which standard for harm is applicable, since the Court deems the error harmless even under

the constitutional standard. If we can say beyond a reasonable doubt, as the Court does today,

that the error did not contribute to Appellant’s conviction, then we can also say that it could

not in any way have affected his “substantial rights” for purposes of the non-constitutional

standard in Rule 44.2(b). T EX. R. A PP. P. 44.2(b). Because, as in Owings, it does not matter

which harm standard we employ, this case, like Owings, is not the best one for resolving that

question, and we should not.

       With these remarks, I concur in the result.




FILED:               November 20, 2019
PUBLISH
