            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

      K EASLER, J., delivered the opinion of the Court in which H ERVEY, R ICHARDSON,
N EWELL, and W ALKER, JJ., joined. Y EARY, J., filed a concurring opinion in which
S LAUGHTER, J., joined. K ELLER, P.J., concurred. K EEL, J., dissented.

                                       OPINION

       Freddy Garcia was indicted on one count of aggravated sexual assault, but at trial, the

victim described two separate sexual assaults. When the State rested its case in chief, Garcia

asked for an election between the two incidents. This request was denied. The court of

appeals held that denying Garcia’s request was error of constitutional magnitude and

reversed Garcia’s conviction. We agree that the trial judge committed constitutional error
                                                                                 GARCIA—2

but disagree that the error was harmful. We therefore reverse the court of appeals’ judgment

and affirm Garcia’s conviction.

                                    I. BACKGROUND

       A. Pre-trial and trial.

       In 1987, the State filed an indictment against Garcia alleging that, on or about August

16, 1987, he penetrated his child step-daughter’s female sexual organ with his own. Upon

making bond, Garcia absconded. He was found in 2015 and extradited to Harris County.

       At trial, the victim testified to multiple instances in which Garcia acted in a sexually

suggestive, indecent, or assaultive manner toward her.         Each time the victim began

describing a different indecent or sexually assaultive act, Garcia moved that the State be

required to make an election—to pick which incident it would ultimately ask the jury to base

its verdict upon. Two of these incidents warrant description here.

       First, the victim recounted an incident wherein Garcia called her into the bathroom

and “raped” her—penetrated her sexual organ with his own. The victim estimated that she

was around eleven years old when this assault occurred. The court of appeals referred to this

as “the bathroom incident.” The victim also recounted an incident wherein Garcia assaulted

her in her bedroom (“the bedroom incident”). The victim estimated that this assault occurred

on or about August 16th of 1987, as alleged in the indictment, when she was twelve.

       When the State rested its case, Garcia re-urged his motion for election. The State

opposed the motion, arguing that the proper time for an election is at the close of all
                                                                                  GARCIA—3

evidence, and the trial judge agreed. Garcia offered to produce a citation to demonstrate his

right to an election at the end of the State’s case, but the trial judge declined, continuing to

hold that he would not order an election until both sides rested and closed.

       So, at the close of all the evidence, Garcia once again asked the trial judge to make

the State elect which incident it would rely upon for conviction. To satisfy this request, the

State submitted, and the trial judge adopted, an application paragraph specifically focused

upon the bathroom 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 [the victim] . . . by placing his
       sexual organ in the female sexual organ of [the victim], while inside a
       bathroom inside an apartment [the victim] shared with her mother, brothers,
       and the defendant, then you will find the defendant guilty[.]

The jury found Garcia guilty of aggravated sexual assault of a child.

       B. Appeal.

       On appeal, Garcia complained that the trial judge committed reversible constitutional

error by refusing to order an election when the State rested its case in chief. The State

responded by arguing that the trial judge had not erred because there was scant evidence that

genital-to-genital penetration occurred during the bedroom incident. It also argued that, if

the trial judge did err, the error was harmless beyond a reasonable doubt. The State did not

initially take issue with Garcia’s assertion that the trial judge’s error should be measured
                                                                                  GARCIA—4

against the constitutional harm standard laid out in Rule of Appellate Procedure 44.2(a).1

       The court of appeals, following our opinion in O’Neal v. State, held that the trial judge

should have ordered an election at the end of the State’s case in chief.2 The court of appeals

also concluded that, under Phillips, the trial judge’s failure to order an election when the

State rested was constitutional error, subject to a Rule 44.2(a) harm analysis.3 Finally, citing

our opinion in Dixon v. State, the court of appeals “consider[ed] the four purposes behind the

election rule” in assaying the record for harm: (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 that 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.4

       The court of appeals first observed that, because Article 38.37 of the Code of Criminal

Procedure “permits the admission of evidence of relevant extraneous offenses committed by


       1
          See State’s Amended Appellate Brief at 8; see also T EX. R. A PP. P. 44.2(a)
(“Constitutional Error”).
       2
         Garcia v. State, 541 S.W.3d 222, 231 (Tex. App.—Houston [14th Dist.] 2017)
(citing O’Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988)).
       3
           Id. at 232 (citing Phillips v. State, 193 S.W.3d 904, 912–14 (Tex. Crim. App.
2006)).
       4
           Id. at 232–33 (citing Dixon v. State, 201 S.W.3d 731, 733 (Tex. Crim. App. 2006)).
                                                                                    GARCIA—5

a defendant against a child victim,” the first factor did not weigh in favor of reversal.5 With

regard to the second and third factors, the court of appeals found that there was a significant

risk that the jury rendered a mixed-and-matched or non-unanimous verdict because the jury

instructions “conflated the earlier bathroom incident and the separate August 16, 1987

bedroom incident.”6 This was essentially because, although the charge referred specifically

to an incident occurring “in a bathroom,” the evidence showed that the bedroom incident, not

the bathroom incident, occurred “on or about the 16th day of August, 1987.” Finally, the

court found that the fourth factor also weighed in favor of reversal, albeit “not [as] heavily,”

because without a timely election Garcia “had to defend against both assaults”—the bedroom

incident and the bathroom incident.7 Because it could not say that the trial judge’s error was

harmless beyond a reasonable doubt, the court of appeals reversed Garcia’s conviction and

remanded the case for a new trial.

       C. Petition for Discretionary Review

       In this petition for discretionary review, the State contends that the court of appeals’

analysis was flawed in two respects. First, the State argues that the court of appeals should

not have applied the Rule 44.2(a) constitutional harm standard to the trial judge’s election

error in this case. The trial judge essentially instructed the jury that, to convict Garcia of



       5
           Id. at 233 (citing, inter alia, T EX. C ODE C RIM. P ROC. art. 38.37).
       6
           Id. at 233–34.
       7
           Id. at 234–35.
                                                                                       GARCIA—6

aggravated sexual assault, it had to unanimously agree upon the bathroom incident. The

State argues that this instruction satisfied Garcia’s right to a unanimous verdict and his right

to be convicted only upon proof beyond a reasonable doubt. Thus, the State argues that the

trial judge’s error is not rightly characterized as a total failure to order an election; it is better

understood as a failure to order an election in a timely fashion. And while a total failure to

order an election might be subject to a constitutional harm analysis, a “merely delayed”

election is non-constitutional error that should be reviewed under a Rule 44.2(b) non-

constitutional harm analysis.8

       The State also argues that the court of appeals was mistaken when it concluded that

the application paragraph in the court’s charge conflated the bedroom incident with the

bathroom incident. According to the State, the mere fact that the application paragraph

contained the August 16, 1987 date did not suggest to the jury that it was free to mix and

match between the bathroom incident and the bedroom incident. Instead, the State argues

that the jury instructions adequately focused the jury’s deliberative attention on a single

event, the bathroom incident, and that attempting to utilize an “on or about” date more

closely correlated with that incident would have required the court’s instructions to deviate

from what was authorized by the indictment. We address each ground in turn.

                                         II. ANALYSIS

       In a sexual assault trial, where one act of intercourse is alleged in the indictment and


       8
           See T EX. R. A PP. P. 44.2(b) (“Other Errors”).
                                                                                  GARCIA—7

more than one act of intercourse is shown by the evidence, the State must elect the act upon

which it would rely for conviction.9 The trial judge retains the discretion to order the State

to make an election at any time before the State rests its case in chief.10 But once the State

rests, in the face of a timely request by the defendant, the trial court must order the State to

make a decision. “Failure to do so constitutes error.” 11

       For brevity’s sake, we will occasionally refer to the rule requiring the State to make

an election at the end of its case in chief as “the rule of timely election,” or “the timely

election rule.” For purposes of this opinion, a timely election means an election made at the

end of the State’s case in chief.

       A. Did the trial judge commit constitutional error?

       In Phillips v. State, we identified a defendant’s due-process right to adequate notice

and his due-process right to present a defense as two of several constitutional rights that are

implicated by a failure to order a timely election upon request.12 So, if followed, Phillips

would seem to decide this issue: Based on his due-process right to receive adequate notice



       9
            O’Neal, 746 S.W.2d at 771 (citations omitted).
       10
            Id. at 772.
       11
            Id.
       12
            See Phillips, 193 S.W.3d at 913–14 (“No principle of procedural due process is
more clearly established than that notice of the specific charge, and a chance to be heard in
a trial of the issues raised by the charge, if desired, are among the constitutional rights of
every accused in a criminal proceeding[.]”) (quoting Cole v. Arkansas, 333 U.S. 196, 201
(1948)).
                                                                                  GARCIA—8

and his due-process right to present a defense, Garcia had a constitutional right to timely

election. By requesting an election at the end of the State’s case in chief, he asserted that

right at the appropriate time, and the trial judge erred to deny his request. As a result,

constitutional error occurred, subject to a Rule 44.2(a) harm analysis.

       We have previously said that “where a harm analysis is appropriate, claims of

constitutional error are subject to constitutional harm analysis and all other claims of error

are subject to non-constitutional harm analysis.”13 Constitutional errors that a party or

reviewing court considers de minimis are not, for that reason alone, subject to non-

constitutional harm analysis. They are simply less likely to be found harmful under the

appropriate constitutional harm analysis. In this case, the fact that the court’s charge focused

the jury’s attention on a single criminal incident may have vindicated Garcia’s right to a

unanimous verdict, but it did not somehow un-violate his due-process right to adequate

notice at the end of the State’s case in chief.

       It follows that the only question we need to answer in this ground is whether we will

continue to adhere to Phillips. We ordinarily observe the doctrine of stare decisis “to

promote judicial efficiency and consistency, encourage reliance on judicial decisions, and

contribute to the integrity of the judicial process.”14 An exception is made when we conclude



       13
            See Jacobs v. State, 560 S.W.3d 205, 209 (Tex. Crim. App. 2018) (citations
omitted).
       14
            E.g., Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000) (citations
omitted).
                                                                                  GARCIA—9

that the precedent in question “was poorly reasoned or is unworkable.” 15 So, to decide

whether the trial judge’s error in this case should be analyzed under a Rule 44.2(a)

constitutional harm analysis, we need only decide whether Phillips was poorly reasoned or

if its holding has become unworkable.

       We begin by observing that the rule announced in Phillips is hardly unworkable. The

“fundamental constitutional principles” of adequate notice and an opportunity to defend

require that an election be made when the State rests its case in chief.16 So, if the defendant

asks for an election at that time, the trial judge violates a constitutional right by overruling

the request. The defendant can complain of constitutional error on appeal.

       Was Phillips poorly reasoned? We do not think so, at least insofar as it drew a

connection between the defendant’s right to a timely election and his rights to adequate

notice and an opportunity to defend. Phillips forthrightly acknowledged that it was the first

opinion to “directly decide[] the proper harm analysis for failure to elect.”17 But it did not

decide that issue on a whim. Phillips carefully assayed “the reasons for requiring an

election” and this Court’s prior precedents on the matter. It then expressly decided that

failing to comply with a motion for election at the end of the State’s case in chief offends

certain “fundamental constitutional principles”—namely, the defendant’s right to receive



       15
            Id. at 571–72 (citations omitted).
       16
            Phillips, 193 S.W.3d at 913–14 (citations omitted).
       17
            Id. at 913.
                                                                               GARCIA—10

adequate notice and an opportunity to defend himself.18

       The State does not really attempt to assail Phillips’s logic in this regard, but it does

offer a hodgepodge of arguments for why, despite Phillips, a “merely delayed” election

should be subject to non-constitutional harm analysis. For example, the State argues that

delaying the election was a “procedural [error] rather than a substantive error,” which

supposedly “raises the question of whether the constitutional harm standard should still

apply.” We are not persuaded. The fact that a particular right can be characterized as

“procedural rather than substantive” does not mean—indeed, does not even really

suggest—that it is of non-constitutional import. It is not for nothing that our federal

Constitution guarantees every accused person some minimal “due process.” 19

       But this argument does raise the question: If not the Due Process Clause, what

provision of law ultimately guarantees a criminal defendant the right to force a timely

election upon request? For example, does that right flow from a statute or written rule of

evidence or procedure?20 Were we convinced that the right of timely election is ultimately

underwritten by one of these provisions of law and has no independent due-process pedigree,

we might readily agree with the State that, while the defendant has a constitutional right to

an election at some point in the trial, he has only a statutory or rule-based right to a timely



       18
            Id. at 913–14.
       19
            See U.S. C ONST. amends. V, XIV.
       20
            Cf. Villescas v. State, 189 S.W.3d 290, 292–93 (Tex. Crim. App. 2006).
                                                                                 GARCIA—11

election.    If that were so, a “merely delayed” election truly would be error of non-

constitutional magnitude.

       But our research has revealed no statute or written rule guaranteeing the right to an

election at the end of the State’s case in chief—which should come as no surprise. The

timely election rule is only to be found in the pronouncements of this Court and its

predecessor courts as handed down over the last century-and-a-half.                  And those

pronouncements provide, at the very least, a reasonable basis for Phillips’s conclusion that

the timely election rule is a requirement of fundamental due process.

       One of the earliest Texas cases we have found discussing the timely election rule,

Fisher v. State, described it as “the true rule and the one which has been uniform in this

state.”21 Fisher cited Roscoe’s Digest Commentaries, the 1874 edition of which explained:

“[T]he reason for putting a prosecutor to his election being that the prisoner may not have

his attention divided between two charges, the election ought to be made, not merely before

the case goes to the jury, as it is sometimes laid down, but before the prisoner is called on for

his defence at the latest.” 22

       Another early Texas case discussing the rule, Lunn v. State,23 cited Bishop’s

Commentaries on the Law of Criminal Procedure, which in 1872 opined that “[t]he chief


       21
            Fisher v. State, 33 Tex. 792, 793 (Tex. 1870).
       22
         Henry Roscoe, Roscoe’s Digest of the Law of Evidence in Criminal Cases 203
(Horace Smith et al. eds., 7th Am. from the 8th London ed. 1874) (citations omitted).
       23
            Lunn v. State, 44 Tex. 85, 86–87 (Tex. 1875).
                                                                                    GARCIA—12

thing, down to the time when the government rests its case and the defence is called for, is

to prevent prejudice to the defendant, in the eyes of the jury, by bringing against him

testimony tending to show crimes for which he is not really indicted, and to which he is not

finally to make answer in the cause.”24 Bishop thus concluded: “[W]hatever may have been

done at an earlier stage of the trial, it is plain that as a general rule there should be an election

required before the prisoner opens to the jury his defence.”25 Lunn ultimately adopted

Bishop’s statement of the rule.26

       Yet another early Texas case, Crosslin v. State, described timely election as a “right”

accorded to the defendant by law.27 At least four different times, Crosslin drew an express

connection between this legal “right” and the expectation that the defendant will receive

enough notice to defend himself. Crosslin said that the election “should not be so long

delayed that it would embarrass the accused by leaving him in doubt as against which offense

he will be called upon to defend.”28 It expressed a concern that a delayed election would put

the defendant “at the disadvantage of having to defend, not only against one but against 50


       24
         Joel Prentiss Bishop, Commentaries on the Law of Criminal Procedure § 463 (2d
ed. 1872).
       25
            Id.
       26
          See Lunn, 44 Tex. at 88 (“[I]f in any case the particular facts would make the case
an exception to the rule calling for the exercise of discretion the election should be made
before the defendant offers his evidence.”).
       27
            Crosslin v. State, 90 Tex. Crim. 467, 471 (Tex. Crim. App. 1921).
       28
            Id. at 470.
                                                                               GARCIA—13

or more offenses.”29 It concluded that the trial judge’s error in failing to order a timely

election in that case ultimately forced the defendant “to proceed with his cross-examination

of the state’s witnesses and in the introduction of his own in ignorance of the particular

offense of which he was prosecuted.”30 And it quoted approvingly of another court’s analysis

of the harmful effect of an untimely election: “Such a course was calculated to confound,

distract, and confuse the defendant in his defense. He was expected to meet one charge at

a specified time, but was required to defend against and meet six different acts[.]” 31

       The point is not that these cases prove beyond dispute that the timely election rule is

of constitutional origin. We need not and do not decide on a blank slate that the Due Process

Clause guarantees the defendant a constitutional, notice-based right to force an election at

the end of the State’s case in chief. The point is that even if the constitutional pedigree of

the timely election rule was up for debate when Phillips was decided, in light of Phillips, it

no longer is. Phillips’s holding was supportable at the time it was handed down, and it

remains supportable now.

       Because we conclude that Phillips’s holding was not unreasonable, and because we

think the standard Phillips established is not unworkable, we decline to overrule it. The court

of appeals rightly concluded that Garcia had a constitutional, due-process right to an election



       29
            Id. at 471.
       30
            Id.
       31
            Id. (quoting State v. Hilberg, 61 P. 215, 216 (Utah 1900)).
                                                                               GARCIA—14

at the close of the State’s case in chief. Because that right was timely asserted and

erroneously denied, constitutional error occurred. Whatever events unfolded after the trial

judge’s timely-election error may have mitigated the harm stemming from it, but those

developments did not somehow transform Garcia’s constitutional right into a non-

constitutional right. The State’s first ground for review is overruled.

       B. The error in this case was harmless.

       As to the first of the four recognized election “purposes,”32 the court of appeals held

that because Article 38.37 of the Code of Criminal Procedure “permits the admission of

evidence of relevant extraneous offenses committed by a defendant against a child victim,”

the first factor did not support a finding of harm.33 The parties have not challenged this

holding, and our precedents support it in any event.34

       As to the second and third election purposes, the court of appeals acknowledged that

the jury instructions in this case required the jury to “unanimously find beyond a reasonable

doubt” that Garcia had penetrated the victim “inside a bathroom inside an apartment” to

convict him of aggravated sexual assault. But the instructions also contained an “on or

about” date of August 16, 1987, which, according to the victim’s testimony and the

contemporaneous evidence, is closer to when the bedroom incident occurred. The court of


       32
        See Owings v. State, 541 S.W.3d 144, 150–51 (Tex. Crim. App. 2017); Dixon, 201
S.W.3d at 734.
       33
            Garcia, 541 S.W.3d at 233 (citing T EX. C ODE C RIM. P ROC. art. 38.37).
       34
            See Owings, 541 S.W.3d at 151; Dixon, 201 S.W.3d at 734–35.
                                                                                GARCIA—15

appeals held that these two data points (“inside a bathroom” and “on or about the 16th day

of August, 1987”) were in conflict with one another, such that there was a significant risk

that one of two things occurred: either (1) the jury returned a guilty verdict despite harboring

a reasonable doubt as to each offense in isolation, or else (2) some jurors voted to convict

Garcia of the bedroom incident while others voted to convict him of the bathroom incident.35

       We disagree with the court of appeals’ premise that the jury charge conflated the two

incidents. The court’s instructions informed the jury that “the State is not bound by the

specific date” alleged in the indictment. Rather, “a conviction may be had upon proof

beyond a reasonable doubt that the offense . . . was committed at any time prior to the filing

of the indictment which is within the period of limitations.” The jury was also told that,

based on the alleged offense date, the “limitation period applicable to the offense of

aggravated sexual assault of a child is ten years prior to August 28, 1987, the date of the

filing of the indictment.”

       “We generally presume the jury follows the trial court’s instructions in the manner

presented.”36 That being the case, we perceive no great risk that the jury would have

understood August 16, 1987 as an express reference to the bedroom incident. Instead,

following the court’s instructions, the jury would have understood that both incidents—the

bedroom incident and the bathroom incident—fell within the time period described by the



       35
            Garcia, 541 S.W.3d at 233–34.
       36
            E.g., Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).
                                                                               GARCIA—16

limitation paragraph. Based solely on the date of August 16, 1987, the jury would not have

felt steered in one direction or another.

       By contrast, the instructions’ explicit description of an assault occurring “inside a

bathroom” would have signaled to the jury that its verdict should ultimately turn on whether

it harbored a reasonable doubt as to the bathroom incident. The instructions’ description of

the incident—occurring “inside a bathroom”—was just enough information for the jury to

distinguish it from all of the other incidents upon which the jury could, consistent with the

indictment and the court’s instructions, vote to convict. At the same time, the description

was not so detailed as to risk “summing up the testimony [or] discussing the facts” of the

case.37 This, coupled with the court’s instruction that the jury had to unanimously agree upon

this incident to convict Garcia of aggravated sexual assault, assures us beyond a reasonable

doubt that Garcia’s right to a unanimous verdict was not imperiled by the trial judge’s

election error. The third election purpose was not frustrated.

       With regard to the second election purpose, we must take into account that in this

case, unlike in some of our earlier election cases,38 the evidence against Garcia “was

presented from [multiple] different sources.”39 The victim testified about the bathroom and

bedroom incidents, but the bedroom incident was also supported by outcry evidence and by



       37
            T EX. C ODE C RIM. P ROC. art. 36.14.
       38
            See Owings, 541 S.W.3d at 151; Dixon, 201 S.W.3d at 735.
       39
            Garcia, 541 S.W.3d at 233.
                                                                              GARCIA—17

the presence of semen on the victim’s underwear.

       However, as previously discussed, the jury was duly informed that its job was to

determine whether the State had proven beyond a reasonable doubt that, “while inside a

bathroom,” Garcia had penetrated the victim’s sexual organ with his own. Furthermore, the

jury was instructed that evidence of extraneous “crimes, wrongs, or acts against the child

who is the victim of the alleged offense in this case” could be only considered “in

determining . . . relevant matters, including: (1) the state of mind of the defendant and the

child; and (2) the previous and subsequent relationship between the defendant and the child,

and for no other purpose.” This instruction would have reinforced the notion that, while the

jury was permitted to consider bad acts other than the bathroom incident for some limited

evidentiary purposes, its ultimate job was to decide whether the bathroom incident was

proven beyond a reasonable doubt. This alleviates any concern that the jury “added up two

not-quite-proven offenses to get the State across the finish line.”40 The second election

purpose was not frustrated.

       That leaves only the fourth and final election purpose—notice to Garcia for the

purpose of mounting a defense—potentially favoring reversal. But, for the following

reasons, we are convinced beyond a reasonable doubt that the trial judge’s violation of

Garcia’s right to adequate notice did not contribute to his conviction.

       In his defense, Garcia denied that either incident had occurred, and he adopted a


       40
            See State’s Brief on Discretionary Review at 32.
                                                                             GARCIA—18

defensive strategy that the State characterizes as a “blanket denial.” Garcia called, among

other witnesses, his son, who testified that the victim did not like Garcia when she was

growing up because he was a “strict disciplinarian.” Another of Garcia’s children echoed

this description of Garcia. We have held in previous cases that these kinds of “blanket

denial[s]” may render any violation of the defendant’s right to adequate notice harmless.41

       We do not doubt the validity of this reasoning, but we must be careful not to take it

too far. For example, there may be instances in which the defendant prepares a tailored

defense as to each incident, but those defenses are inconsistent with one another. In those

circumstances, if the trial judge denies the defendant’s timely motion for election, the

defendant might plausibly argue that the trial judge’s ruling left him no choice but to make

a blanket denial. For, without knowing which incident would be submitted to the jury before

he opened his defense, what else was the defendant to do? He could not present both

defenses simultaneously without losing credibility with the jury, and if he presented one

defense but not the other, the State would simply elect the undefended incident. In that

event, a blanket denial would have been the only reasonable option left.

       Although it is a close call, we are not persuaded that Garcia was faced with any such

dilemma. Arguing that (1) the bathroom incident was vaguely described and uncorroborated,

(2) the physical evidence supporting the bedroom incident failed to implicate him, and (3)




      41
         E.g., Owings, 541 S.W.3d at 153–54 (citing Cosio v. State, 353 S.W.3d 766,
777–78 (Tex. Crim. App. 2011)).
                                                                                GARCIA—19

in any event, the victim had a motive to lie, are not inconsistent defensive strategies. Even

if Garcia could plausibly claim that presenting all of these defenses at the same time cost him

credibility with the jury, he has made no argument to that effect. We are ultimately

unconvinced that if the trial judge had put the State to its election at the appropriate time,

Garcia’s defensive strategy would have been meaningfully different.

       For these reasons, with respect to each of the rights and interests at stake, we conclude

that the trial judge’s election error was harmless. The State’s second ground for review is

sustained.

                                    III. CONCLUSION

       We reverse the court of appeals’ judgment. Because the court of appeals overruled

Garcia’s only other issue on appeal, the trial court’s judgment is affirmed.

Delivered: November 20, 2019

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