Motion for Rehearing Overruled; Opinion of July 20, 2017 Withdrawn;
Reversed and Remanded; and Substitute Opinion Filed December 14, 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


                     SUBSTITUTE OPINION

        We overrule the State’s motion for rehearing, withdraw our opinion dated July
20, 2017, and issue the following substitute opinion. The disposition remains the
same.

        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.


                                             2
      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.

      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).



                                            3
      A.     The Length of the Delay

      This first factor is a double inquiry. 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
must consider to what extent it stretches beyond this triggering length.” Hopper v.
State, 520 S.W.3d 915, 924 (Tex. Crim. App. 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) (en banc). 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 inquiry 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).


                                            4
      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,
495 S.W.3d 468, 474 (Tex. App.—Houston [14th Dist.] 2016), aff’d, 520 S.W.3d
915 (Tex. Crim. App. 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 State’s custody 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
                                          5
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.
(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.



                                          6
      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.

      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, 520 S.W.3d at 928 (“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.)).

                                           7
      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) 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,
520 S.W.3d at 928; 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

                                           8
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,
520 S.W.3d at 929 (“Any presumptive prejudice due to the passage of time was
extenuated by appellant’s acquiescence in the delay and even further extenuated 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



                                          9
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.

      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


                                          10
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.

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) (en banc). 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



                                           11
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
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


       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
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?
      [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

                                            13
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.

         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.

         We determine next whether the failure to require a timely election was
harmful.

         C.    Harm Analysis

         Having concluded that the failure to require an election at the close of the
State’s case-in-chief 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. See Phillips, 193 S.W.3d 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,


                                             14
      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
      (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).

             1. Extraneous offenses

      With regard to the first Dixon factor — protecting 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.

      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.

             2. Combination of incidents and unanimity

      We conclude that the second and third Dixon factors 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
                                           15
evidence was presented from different sources, increasing the likelihood that the jury
added up different events and testimony from different witnesses in rendering its
verdict.

      Additional circumstances in this case further increase the likelihood that the
failure to require an election at the close of the State’s case-in-chief thwarted the
purposes underlying the second and third Dixon factors.

      The jury charge in this case appeared to present only one incident as a basis
for conviction, but the charge referenced a single penetrative assault that occurred
(1) in a bathroom; and (2) on or about August 16, 1987. This record demonstrates
that the earlier penetrative assault in the bathroom of the family’s apartment when
the complainant was 11 is a separate incident distinct from the later penetrative
assault in the bedroom of a different apartment on August 16, 1987, when the
complainant was 12.

      The trial court charged the jury with an instruction that conflated the earlier
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.




                                          16
      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:

      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.

      Because some evidence was presented that penetration may have occurred
both in a bathroom and separately on August 16, 1987, in complainant’s bedroom,
there is a significantly increased possibility that (1) 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) some members of the jury convicted
based on the bathroom incident and others based on the August 16, 1987 bedroom
incident. See 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”).
                                         17
This significant possibility is made more likely because the jury charge — and the
parties’ closing arguments based on that charge — conflated these two separate
incidents of penetrative assault.

             3. Notice

      We conclude that the fourth Dixon factor — 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. The evidence presented concerned two discrete instances of penetration,
and it was unclear in the absence of an election at the close of the State’s case 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 throughout trial also
emphasized the lack of scientific evidence, missing evidence, and poor police
investigation. 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 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
                                           18
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 wrongdoing, 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 elect did not contribute to appellant’s
conviction. See Phillips, 130 S.W.3d at 353-54. We sustain appellant’s first issue.

       D. The State’s Contentions on Rehearing

       On original submission, the State’s brief focused initially on its contention
that “[t]he State presented evidence that appellant sexually assaulted [the
complainant] . . . in multiple ways, but only presented evidence of one act of
penetration.” According to the State’s brief, “Because evidence of multiple acts of
the sexual assault alleged in the indictment were not presented, an election was not
required.”

       The State abandons its “one act of penetration” argument on rehearing and
focuses instead on contentions that (1) the error at issue is a “delay in providing the
election” or a “late election at the close of all evidence” rather than a failure to elect;
and (2) any error with respect to election is harmless. We address these contentions
in turn.




                                            19
             1. “Delay in providing the election”

      According to the motion for rehearing, this court’s opinion “incorrectly
decide[d] harm as if no election was made, rather than based on the error presented:
a delay in providing the election.” The State contends that it “elected a specific
offense at the end of all evidence.”

      The State’s motion for rehearing cites to the jury charge in support of its
contention that it “elected a specific offense at the end of all evidence.” The State
also cites portions of the reporter’s record containing on-the-record colloquies
among the trial court and counsel that occurred (1) after the State presented its case-
in-chief and rested; and (2) after the defense presented evidence and both sides then
rested at the close of evidence.

      The cited portion of the jury charge is the same one quoted earlier, which
appears to identify only one penetrative assault occurring on or about August 16,
1987 — but simultaneously references an earlier penetration incident occurring in a
bathroom. This portion of the jury charge conflates the earlier bathroom incident
and the separate August 16, 1987 bedroom incident.

      A review of the first cited colloquy confirms that the State made no election
after presenting its case-in-chief and resting. Instead, counsel for the State and the
defense discussed only timing of the election and debated whether the State was
required to elect at the close of its case-in-chief (as the defense advocated) or at the
close of all the evidence (as the State advocated). The trial court erroneously
concluded at the end of the first colloquy that the election had to occur at the “[c]lose
of all the evidence, including the State’s case.”

      A review of the second cited colloquy confirms that the State made no election
at the close of all the evidence when both sides rested. Instead, the State indicated


                                           20
it would make an election in the jury charge and stated: “It’s just going to be a matter
of us figuring out how to word the description of the specific incident we are electing
to go forward on. So, if we could be allowed some time to do that.”

      There is no meaningful distinction to be drawn on this record between a failure
to elect versus a late election. The State posits a “late election” that occurred in the
jury charge. But “the jury charge does not serve ‘as a de facto election’ because it
is given too late in the trial to afford a defendant the requisite notice to defend.”
Owings v. State, No. PD-1184-16, 2017 WL 4973823, at *5 n.8 (Tex. Crim. App.
Nov. 1, 2017) (citation omitted); see also Phillips, 193 S.W.3d at 912 (“A jury
charge and an election are not interchangeable in this context. The State is required
to elect at the close of its evidence when properly requested.”).

      In any event, the jury charge did not specify a single incident because it
conflated the earlier bathroom penetrative assault and the later penetrative assault in
the bedroom on August 16, 1987. On rehearing, the State no longer disputes that the
earlier bathroom penetrative assault and the later August 16, 1987 penetrative assault
in the bedroom of a different apartment are two separate incidents.

             2. Harm

      The State argues on rehearing that the second and third Dixon factors
undergirding the election requirement “were not at issue and do not weigh in favor
of harm” because “an election was ultimately made at the close of evidence and
provided in the court’s charge . . . .” As discussed above, the record confirms that
no purported election occurred at the close of evidence and the charge itself conflates
two separate incidents involving penetrative assault. With respect to the fourth
Dixon factor, the State argues on rehearing that it does not weigh in favor of reversal
because “appellant did not distinguish between the offenses, have an alibi to one


                                          21
offense, or argue that one offense was impossible. Instead, his defense was the same
across the board that no sexual assaults ever occurred . . . .”

      In analyzing these contentions we draw guidance from the harm analysis in
Owings, 2017 WL 4973823, at *6-8, which was decided after the panel issued its
original opinion in this case. The Court of Criminal Appeals concluded in Owings
that the second, third, and fourth Dixon factors did not point in favor of harmful error
arising from the trial court’s erroneous failure in that case to require the State make
an election at the close of its evidence.

      The indictment in Owings “alleged one offense describing one act of genital-
to-genital contact.” Id. at *5. But the complainant “testified that Appellant put his
penis in her vagina on numerous occasions.” Id. “Hence, she testified to more than
one act of genital-to-genital contact.” Id. “Therefore, because the defense made a
timely request, we agree with the court of appeals that the trial court erred by not
requiring the State to elect the act of genital-to-genital contact upon which it would
rely for a conviction.” Id.

      In assessing harm under the second Dixon factor, the court in Owings stated:
“All of the incidents of sexual abuse in this case were recounted by the same source
. . . .” Id. at *6. That source was the complainant. Id. “This case did not involve
the presentation of evidence of different activities from different sources that a jury
might perceive to ‘add up’ to the defendant being guilty even though no individual
offense was proven beyond a reasonable doubt.” Id.

      Owings also noted that “[t]here was very little variance in how [the
complainant] . . . described the genital-to-genital contact.” Id. “And, but for the
times when [the complainant] . . . said Appellant put his penis in her vagina and she
was also forced to perform oral sex, she described a sequence of events that
happened repeatedly in the same way and under the same circumstances in the same
                                            22
place.” Id. (emphasis in original). The complainant “described repeated genital-to-
genital contact that occurred in Appellant’s bedroom, and the indictment alleged
only genital-to-genital contact.” Id. at *7. “Despite certain varying details, these
acts of abuse could reasonably be viewed as a general pattern.” Id.

      Owings concluded that the second Dixon factor did not weigh in favor of
reversal because the complainant “was either credible or she was not; she described
the ongoing, repeated instances of genital-to-genital contact with enough detail to
support a finding of guilt.” Id. “Likewise, we are confident that the State’s failure
to elect did not result in a non-unanimous verdict.” Id. “As noted above, the
prosecution clearly focused on the same act of genital-to-genital contact that [the
complainant] . . . said occurred on numerous occasions in Appellant’s bedroom.” Id.
“Appellant’s defense was that the sexual abuse did not occur at all.” Id. “There is
no basis anywhere in the record for the jury to believe that one incident occurred and
another did not.” Id. “Either they all did or they all did not.” Id. “We also perceive
no risk that Appellant was deprived of adequate notice of which offense to defend
against.” Id. at *8. Appellant’s defense was the same as to each incident [the
complainant] . . . testified to — that no sexual abuse occurred at all.” Id.

      In reaching these conclusions the court in Owings distinguished Phillips, 193
S.W.3d at 913. Phillips “held that the trial court’s error in failing to require the State
to elect was harmful constitutional error because the complainant had given more
than one detailed account for each type of offense.” Owings, 2017 WL 4973823, at
*7 n.20 (citing Phillips, 193 S.W.3d at 907, 914). “Specifically, the purpose that
was not satisfied [in Phillips] was the one requiring jury unanimity.” Owings, 2017
WL 4973823, at *7 n.20. “The danger was that six jurors could convict on the basis
of one of the detailed incidents and six could convict on the basis of the other detailed
incident.” Id. (citing Phillips, 193 S.W.3d at 13).

                                           23
      Applying this teaching, we conclude that harmful error is shown because the
circumstances here are much more similar to those in Phillips than they are to those
in Owings or Dixon. Unlike Owings, this case does not involve evidence of a
“general pattern” of genital-to-genital contact “that happened repeatedly in the same
way under the same circumstances in the same place.” See also Dixon, 201 S.W.3d
at 735 (No harm shown from failure to elect where the complainant “articulated one
sequence of events and merely answered that this sequence happened one hundred
times, with all but one of these instances occurring at night. The child was either
credible in giving this unified account or she was not.”).

      In contrast to Owings and Dixon, this case involves evidence from different
witnesses who described two distinct penetrative assaults that occurred under
different circumstances at different times in different rooms of different apartments.
Here, as in Phillips, there is a significant danger that “six jurors could convict on the
basis of one of the detailed incidents and six could convict on the basis of the other
detailed incident.” See Owings, 2017 WL 4973823, at *7 n.20 (citing Phillips, 193
S.W.3d at 13). That danger is increased by the jury charge, and by closing arguments
based on the charge’s conflated description of a single penetrative assault as
occurring both (1) “while inside a bathroom inside an apartment [complainant] . . .
shared with her mother, brothers, and the defendant;” and (2) “on or about the 16th
day of August, 1987” — a date that corresponds to a separate bedroom incident in
another apartment.




                                           24
                                       CONCLUSION

       Having determined that the failure to require an election of which act the State
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.2




                                           /s/    William J. Boyce
                                                  Justice



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




       2
          In a cross-issue, the State requests we reform the judgment. Because we remand for a
new trial, we do not reach this issue.

                                             25
