                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00355-CR


                       RONNIE MACK BARNARD, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 54th District Court
                                 McLennan County, Texas
              Trial Court No. 2013-631-C2, Honorable Matt Johnson, Presiding

                                     April 8, 2015

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      A thirteen-count indictment accused appellant, Ronnie Mack Barnard, of

aggravated sexual assault of a child, indecency with a child by contact, and sexual

assault of a child. The State abandoned three of the counts and proceeded to trial on

the remaining ten.    A jury found appellant guilty of each count.         The range of

punishment was enhanced by two prior convictions. The jury assessed punishment at

life in prison on each count. The trial court imposed the sentences and ordered they run

consecutively. We will affirm.
                                            Analysis


         In his sole issue, appellant argues the trial court abused its discretion by failing to

sua sponte order the State to elect the specific acts it relied on for conviction.


         This complaint was not raised in the trial court and is therefore not preserved for

our review. TEX. R. APP. P. 33.1(a)(1); see Tennyson v. State, No. 05-00-01194-CR,

2001 Tex. App. LEXIS 3442, at *3 (Tex. App.—Dallas May 25, 2001, no pet.) (not

designated for publication) (citing appellate rule 33.1(a) and stating “[b]ecause appellant

did not request an election after the State rested, we conclude appellant waived his right

to require an election at that time”).       While appellant contends he may assert his

complaint for the first time on appeal because it arises from unobjected-to jury charge

error that caused him egregious harm, based on the following analysis we find the trial

court did not err. The egregious harm standard for unobjected-to jury charge error

applies only after the appellate court first finds error in the jury charge. Tolbert v. State,

306 S.W.3d 776, 779 (Tex. Crim. App. 2010) (citing Posey v. State, 966 S.W.2d 57, 61

(Tex. Crim. App. 1998)).


         Moreover, even if properly preserved for our review appellant’s issue lacks any

merit.    As a general rule, when the State’s evidence shows multiple instances of

conduct conforming to a single indictment allegation, the State must elect the instance

on which it will rely for conviction. Martinez v. State, 225 S.W.3d 550, 555 (Tex. Crim.

App. 2007); O'Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). Ordering an

election by the State “forces it to formally differentiate the specific evidence upon which

it will rely as proof of the charged offense from evidence of other offenses or misconduct



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it offers only in an evidentiary capacity.” Phillips v. State, 193 S.W.3d 904, 910 (Tex.

Crim. App. 2006).      The election requirement also provides protection of such

fundamental rights of the defendant as notice and unanimity thus ensuring “both that the

defendant is aware of precisely which act he must defend himself against, and that the

jurors know precisely which act they must all agree he is guilty of in order to convict

him.” Id.


      Thus, after the State rests its case-in-chief, provided the defendant makes a

timely request, the trial court must order the State to elect the act it relies on for

conviction. Phillips, 193 S.W.3d at 909; O'Neal, 746 S.W.2d at 771. The trial court has

no discretion to respond otherwise. Phillips, 193 S.W.3d at 909; O'Neal, 746 S.W.2d at

771. In such instances, the court’s failure to order an election is error. O’Neal, 746

S.W.2d at 772.


      But the State is not obligated to make an election and error is not shown absent

the defendant’s timely motion for election. O’Neal, 746 S.W.2d at 771 n.3; Crawford v.

State, 696 S.W.2d 903, 906 (Tex. Crim. App. 1985) (citing Bates v. State, 165 Tex.

Crim. 140, 305 S.W.2d 366, 368 (1957)) (on showing of more than one act of

intercourse, on the defendant’s motion, the State must elect and failure to so order is

error); Jiminez v. State, No. 07-07-00389-CR, 2009 Tex. App. LEXIS 7555, at *3 n.3

(Tex. App.—Amarillo Sept. 29, 2009, pet. refused) (mem. op., not designated for

publication) (noting absent a motion by the defendant to require an election, the State is

not required to make an election); Molina v. State, No. 05-05-01599-CR, 2006 Tex. App.

LEXIS 9670, at *2-3 (Tex. App.—Dallas Nov. 8, 2006, pet. refused) (not designated for



                                            3
publication) (appellant did not request an election and appellate court found no authority

suggesting the trial court should have ordered an election on its own motion).


      In the present case, appellant made no motion requesting an election by the

State. We are not shown, nor do we find, any authority even intimating the trial court

was nevertheless obligated to order an election sua sponte. Such a requirement would

effectively make ordering an election a ministerial task. Importantly, it would deny the

defendant a significant strategic option1 and allow a disjointed error-preservation

procedure.2 Appellant’s reliance on O’Neal is misplaced. The opinion does not support

the notion that a trial court has discretion to order an election sua sponte. Rather, the

O’Neal court stated, “Once the State rests its case in chief, in the face of a timely

request by the defendant, the trial court must order the State to make its election.

Failure to do so constitutes error.” 746 S.W.2d at 772 (emphasis supplied); see id. at

771 n.3 (“[A]ppellant preserved error by his motion to require election. Absent such a

motion by the defendant, the State is not required to make an election”).


      We find that even had appellant preserved his complaint, the trial court had no

obligation to sua sponte order an election.




      1
        See Cosio v. State, 353 S.W.3d 766, 775 (Tex. Crim. App. 2011) (“A defendant
may choose not to elect so that the State is jeopardy-barred from prosecuting on any of
the offenses that were in evidence. Punishment would then also be limited to the
charged offense only, and, given the jeopardy bar, there is no possibility that the
defendant would receive an additional stacked sentence, based on any of the offenses
in evidence, down the line” (footnote omitted)).
      2
         A defendant would necessarily have to object on the record pointing out to the
trial court, in a timely manner, its failure to sua sponte order an election. See TEX. R.
APP. P. 33.1(a)(1).

                                              4
                                      Conclusion


      Appellant’s issue is overruled and the judgments of the trial court are affirmed.




                                                James T. Campbell
                                                    Justice



Do not publish.




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