               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                         NO. PD-1184-16



                    RICHARD CHARLES OWINGS, JR., Appellant

                                                  v.

                                   THE STATE OF TEXAS

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

                W ALKER, J., filed a concurring opinion.

                                  CONCURRING OPINION

       I agree with the Court’s decision to reverse the judgment of the court of appeals and remand

the case for further proceedings. However, I write separately to give greater depth to the harm

analysis, especially because some of the purposes served by the election rule may seem obtuse to the

uninitiated.

       When a trial court errs by failing to require the State to elect, the error is constitutional and

subject to harmless error analysis. Phillips v. State, 193 S.W.3d 904, 914 (Tex. Crim. App. 2006).

Furthermore, for election cases, our harmless error analysis requires examining the four purposes
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underlying the election requirement and how the defendant might have been harmed by the lack of

a proper election to serve each of those purposes. Dixon v. State, 201 S.W.3d 731, 734-36 (Tex.

Crim. App. 2006). Those purposes are:

•      to protect the accused from the introduction of extraneous offenses;
•      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;
•      to ensure unanimous verdicts; that is, all of the jurors agreeing that one specific incident,
       which constituted the offense charged in the indictment, occurred;
•      and 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.

Phillips, 193 S.W.3d at 909-10. Our constitutional harm analysis thus requires us to determine

whether we are convinced beyond a reasonable doubt that in none of those ways the election error

contributed to the defendant’s conviction or punishment. See Dixon, 201 S.W.3d at 736.

Accordingly, we must determine that the error did not:

•      impair the defendant’s protection from the introduction of extraneous offenses;
•      increase the risk that the jury wrongfully convicted the defendant because of the evidence of
       all of the events together, and not because one or more crimes were proved beyond a
       reasonable doubt;
•      endanger the defendant’s right to have the jurors reach a unanimous verdict on the specific
       incident that constituted the offense of which the defendant was convicted; or
•      deny the defendant notice of the particular conduct the State relied upon as constituting each
       offense and an adequate opportunity to defend against the allegation that the defendant
       engaged in that conduct.

See id. at 734-36.

                 I - Protection from the Introduction of Extraneous Offenses

       To the unfamiliar, the first purpose of the election requirement seems contradictory. The time

for a defendant to request election is at the end of the State’s case in chief. Crosslin v. State, 235

S.W. 905, 906 (Tex. Crim. App. 1921); O’Neal v. State, 746 S.W.2d 769, 772 (Tex. Crim. App.
                                                                                                    3

1988); Phillips, 193 S.W.3d at 909. At this point in the proceedings, the State may have already

presented the extraneous offense evidence to the jury.1 How can an election of offenses by the State

protect a defendant from extraneous offense evidence after the State has already put that evidence

before the jury during its case in chief? The “harm,” so to speak, has already been done. The State

rang the bell, poisoned the well, and put the skunk in the jury box. The fact that a defendant has

committed other offenses is not a fact a jury can easily forget.

        While the jury may be unable to forget, the trial court can instruct the jury to consider the

extraneous offense evidence, not as evidence of guilt of the charged offense, but for other limited

purposes. This is the “protection” contemplated by the first purpose underlying election. How can

a court know which evidence is extraneous, and thus which evidence should a defendant be

“protected” from via a limiting instruction, until the State has elected which offense it will proceed

upon?

        “Protection” under the first purpose is probably a misnomer. A limiting instruction does not

keep a defendant safe from extraneous offense evidence. It does not guard against or prevent the

evidence from being presented. Instead, the “protection” is a mitigating measure–it blunts or softens

the damage done by the already presented extraneous offense evidence by instructing the jury that

the evidence is to be considered for limited purposes.

        That being said, did the error impair Appellant’s “protection” from the admission of evidence


        1
          Extraneous offense evidence is admissible for purposes other than proving character, such
as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident. Tex. R. Evid. 404(b)(2). Additionally, in cases involving sexual abuse of a minor
such as this one, evidence of other bad acts committed against the same child who is the victim of
the alleged offense is admissible to show the defendant’s state of mind, the relationship between the
defendant and the child, and, in aggravated sexual assault cases such as the one before us today, to
prove character. Tex. Code Crim. Proc. Ann. art. 38.37 §§ 1(b), 2(b) (West Supp. 2016).
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of extraneous offenses? The majority considers, as part of its analysis, the fact that the extraneous

offense evidence was admissible under the Code. Tex. Code Crim. Proc. Ann. art. 38.37 (West Supp.

2016). This fact is, I believe, irrelevant to the election harm analysis, at least in this case, because

the evidence was admitted during the State’s case, before the time to require an election. Next, the

majority recognizes that the trial court gave a limiting instruction. As just discussed, a limiting

instruction is the “protection” contemplated by the first purpose. Whether the limiting instruction

was actually effective, that is, whether the jury properly did not give the extraneous offense evidence

undue significance, is unknown. Absent evidence to indicate otherwise, an appellate court should

assume that the jury was able to follow instructions and that it did so. Based on Texas law, the first

purpose was not impaired.

               II - Risk of a Conviction Not Proved Beyond a Reasonable Doubt

        The second purpose behind the election requirement is concerned with the possibility that

a jury, when faced with evidence of multiple offenses, could unanimously conclude that none of the

offenses were proved beyond a reasonable doubt, but the evidence of all of the offenses justifies

conviction anyway. Phillips, 193 S.W.3d at 910 n.27 (“The jury may have taken both [offenses] into

account, and have considered that one or the other was not sufficiently made out to warrant a

conviction, but that both together convinced [it] of the guilt of the defendant . . . .”) (quoting Fisher

v. State, 33 Tex. 792, 794 (Tex. 1870)).

        In my view, the risk is minimal that Appellant was convicted because the jury was convinced

that he was generally guilty of the great multitude of offenses while at the same time not guilty of

one beyond a reasonable doubt. This is so because the evidence of each separate incident appears to

be enough to convince a jury that Appellant was guilty of the offense beyond a reasonable doubt.
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        First, regarding the first “incident,” which the majority fairly considers to be many

undifferentiated offenses,2 the evidence showed that Appellant committed aggravated sexual assault

of a child as indicted, by causing K.M.’s sexual organ to contact his own sexual organ. K.M. testified

in great detail about how the room was laid out and the general pattern of abuse committed by

Appellant. According to K.M.’s testimony, Appellant would put her in the closet, take her clothes

off, and then pick her up and put her on the bed. She would cry and tell him to stop, but Appellant

would nevertheless get on top of her and stick his penis in her vagina. In my opinion, this testimony

is more than enough to get a jury to find the first offense proved beyond a reasonable doubt.

        Second, the evidence of the incident with the added oral assault was itself enough to convince

a jury that Appellant was guilty beyond a reasonable doubt. K.M. testified that this incident occurred

in Appellant’s and K.M.’s grandmother’s room, just as with the undifferentiated assaults. She then

explained that the “same thing” happened that Appellant did the first time (referring to the “first

incident” of undifferentiated assaults), but this time he had K.M. put her mouth on Appellant’s penis.

K.M. testified that this happened after Appellant had put his penis inside of her. Just as with the first

undifferentiated offenses, the evidence of the second incident appears to be enough to convince a

jury that Appellant was guilty of the offense beyond a reasonable doubt.

        Third, the evidence of the incident in Tyler’s room appears to be enough to convince a jury



        2
          I do not fault the court of appeals for finding that the “first incident” was a single, discrete
instance. K.M.’s testimony about the general pattern was in response to the State’s question:

        Q. Okay. So, we talked about the abuse. I want to think back right now in your mind
        of a specific incident that you remember the best; and we’ll start there, okay? Okay.
        Where were you when that happened?

Rep. R. vol. 4, 18 (emphasis added).
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that Appellant was guilty of the offense beyond a reasonable doubt. K.M. testified that she was in

her uncle’s room, watching a movie, and it was dark outside. She testified that Appellant came in

and did “both things” to her, referring back to her testimony of the vaginal and oral assault from

second incident. She explained that Appellant took his clothes off, got on top of her, and put his

penis in her vagina and then he put his penis in her mouth. Like the evidence of the second incident,

and the evidence of the first incident, the evidence of the third incident appears to be enough to

convince the jury that Appellant was guilty of the offense beyond a reasonable doubt.

         Finally, the evidence of the incident at Appellant’s father’s house appears to be enough to

convince a jury that Appellant was guilty. K.M. testified in detail about an incident where Appellant

said he was going to take her to an arcade, but instead of taking her to the arcade he took her to his

father’s home. While there, Appellant showed K.M. around the house until he finally took her into

his bedroom there, where he again stuck his penis in K.M.’s vagina and then put her mouth on his

penis.

         Accordingly, I believe that the evidence as to each of the “four” incidents appears to be

enough to convince the jury Appellant was guilty beyond a reasonable doubt. I see no risk that the

jury decided to convict Appellant simply because the jury was convinced that he was generally guilty

due to the evidence of all the offenses, but was not convinced that Appellant was guilty of any

specific offense beyond a reasonable doubt.

                            III - Danger of a Non-Unanimous Verdict

         The third purpose is concerned with the possibility that a portion of the jury may have found

the defendant guilty of one offense, while another portion of the jury may have found the defendant

guilty of a different offense. If this occurs, the jury is not unanimous about a specific offense, and
                                                                                                     7

the defendant’s right to a unanimous verdict would be violated.

       Considering the third purpose, the majority is correct in finding that “[t]here is no basis

anywhere in the record for the jury to believe that one incident occurred and another did not.”

However, the majority opinion goes on to say “[e]ither they all did or they all did not.” I am

concerned with the phrasing used by the majority opinion, and I think that the blanket statement that

the jury must either believe that all of the incidents occurred or none of them occurred deserves some

further explanation. Of course, it is possible that a jury might decide that a witness’s credibility is

an all or nothing question. “We think the witness is credible, so we believe everything he said.” But

a jury could decide that a witness’s credibility is nuanced and not subject to a general determination.

“We think the witness was credible when he was discussing his background, training, and

experience, but we think he was not credible when he was explaining his actions on the day in

question.” See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (“The jury, being the

judges of the facts and credibility of the witnesses, could choose to believe or not believe the

witnesses, or any portion of their testimony.”) (citing Esquivel v. State, 506 S.W.2d 613, 615 (Tex.

Crim. App. 1974)).

       Again, the majority is correct in finding that there is no basis in the record for the jury to

believe that one incident occurred and another did not. But it is because of that silence in the record

that we entrust questions of credibility and demeanor to the jury. Meekins v. State, 340 S.W.3d 454,

461 n.32 (Tex. Crim. App. 2011) (“Determinations of witness credibility are left entirely to the fact

finder, who is in the unique position to observe the witness’ body language, demeanor, tone of voice,

and other indicia of credibility.”); Jackson v. Virginia, 443 U.S. 307, 319 (1979). While appellate

records contain what a witness said, they almost universally never contain how the witness said it.
                                                                                                        8

A witness may be nervous, a witness may be visibly sweaty, a witness may testify in an

uncharacteristically robotic and rehearsed fashion, a witness may make small hints through body

language. These things may be present throughout the witness’s time on the stand. They may be

present only during particular lines of questioning. All of these things can affect a jury’s impression

of the witness, but rarely do they make it into the record to be seen by us or the courts of appeals.

        The testimony in this case, unlike in Dixon, was not almost entirely composed of

undifferentiated and unspecific incidents. While the majority fairly construes the first incident as

many indistinguishable incidents, there were also three specific incidents as well. The testimony

about the undifferentiated incidents may have been more or less credible than the testimony about

the incident where oral contact was added, the vaginal and oral incident in Tyler’s room, or the

vaginal and oral incident at Appellant’s father’s home. And the testimony about any of those three

incidents may have been more or less credible than the others. That being said, by its guilty verdict

the jury must have found K.M. to be credible. And absent any indication to the contrary, I agree with

the majority that, in this case at least, there is no cause to find that the jury found one part of K.M.’s

testimony more or less believable than another.

        That brings me back to the unanimity concern. For the second incident involving added oral

contact, I believe there is no danger that some members of the jury decided to convict Appellant on

only the second incident while other jurors decided to convict him on any of the others, especially

the first. The oral assault was brought up early in the State’s closing argument:

                [K.M.], [K.M.], this intelligent, sweet, good kid, gets up there; and she tells
        you just exactly the kind of hell that she was living through from the ages of five up
        until eight. And I know you had it, but at one point in her testimony, you felt it in
        your gut, you knew it. You knew that you believed her. And maybe it was that
        moment when she got up there and you heard about all the things that she loved and
                                                                                                    9

       then that change in her emotion the second that I turned her attention to that 2009
       first incident. Or maybe it was that moment when she recalled with such specificity
       just exactly what her little body was doing when that man put his penis inside of her.
       She told you, I was laying there; I was stiff. What a vivid detail for a six year old to
       have to go through, experience when you’re involved in unwanted sexual contact.
       And she tells you that her body was stiff when that was happening.
                Or maybe that moment came for you in your gut when you got to hear about
       her basically reliving an event that occurred, and you heard from Lisa Holcomb in
       that interview and she did it for you here today or yesterday, too, when she was
       demonstrating for you just exactly how he grabbed her head when he forced her
       mouth on his penis. She was reliving that moment.
                So, when you knew it in your gut and you knew that you believed her then,
       right then and there, that’s guilty.

Rep. R. vol. 5, 75. While this reference in the State’s closing argument may have revived a

particularly vivid moment during K.M.’s testimony for the jury, the risk that the reference led some

jurors to find Appellant guilty of the second incident, but not the others, is slight. The main thrust

of the State’s argument was directed toward the general pattern of abuse encapsulated in the “first”

incident. The reference to K.M.’s testimony about the second incident was not to highlight the

incident itself as an offense for the jury to consider guilt or innocence on, but for the purpose of

emphasizing K.M.’s credibility, that her testimony was coming from reliving the abuse. Therefore,

I do not believe that there was a danger that some members of the jury found Appellant guilty of the

second incident but not the first.

       For the third incident, there is no danger that some members of the jury decided to convict

Appellant on the incident in Tyler’s room but not the other incidents. The State just briefly

mentioned Tyler in its closing argument to address a possible concern that the jury believed K.M.’s

testimony but may have wanted to hear testimony from Tyler for corroboration. The State’s argument

clearly was not putting emphasis on the incident in Tyler’s room. Instead, it was intended to

encourage the jury to follow its instinct to believe K.M.’s testimony without requiring corroboration.
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No members of the jury could have taken the brief mention of Tyler as a sign that the incident in

Tyler’s room is what they should be focusing on in deliberations.

       For the fourth incident, where K.M. testified that Appellant said he was going to take her to

an arcade (It’z) but instead took her to his father’s home where he again assaulted her, there is also

no danger that some members of the jury found Appellant guilty of this offense but not the others.

The only place in the State’s closing argument where that incident was brought up went as follows:

               Let’s talk about the Defendant’s testimony. He agreed to a lot. I mean, the
       elements that are before you, he agreed to all of them, he just said there wasn’t any
       sexual contact between the two of them. And you know what else he agreed to just
       about every single thing that’s come across that stand. He told you about the locked
       doors, the nighties. He tells you about the last excursion out with [K.M.]. He just
       wants you to believe that nothing was going on during that time.
               And what are the reasons why he wants you to believe that? He wants to tell
       you, well, she was locking the door. It was irritating to me, but I just let her do it
       anyway. And she would model for me the clothes that she would put on back there.
       And what else would he say about that trip to It’z? Well, I didn’t feel like it was
       necessary to actually tell her mom where I was taking her. I just took her to all these
       different places because I wanted to spend one last time with her.
               So when you think about all the things that he said and he can’t even come
       up with a reason as to why she would lie or who’s doing it for or anything like that,
       and you know that he has every reason in the world to tell you that he didn’t do it and
       you know that you can’t trust a word that he has to say. Because at the end of the day,
       though, when you look at all the pieces and you put it all together, the Defense wants
       you to just brush this off as coincidences. And yet we have this mountain of
       coincidences that they need you to suspend reality about and pretend are not
       occurring.

Rep. R. vol. 5, 85-86. Clearly, the State’s closing argument only brought up the incident for a short

moment, and the State did not emphasize it as an offense for the jury to consider Appellant’s guilt

or innocence. It was only brought in as part of the State’s argument that Appellant’s testimony and

reasons should not be believed. Thus, there is no danger that any members of the jury would take this

reference as a sign to consider Appellant’s guilt on the incident at Appellant’s father’s house but not
                                                                                                     11

the first undifferentiated offenses.

        Accordingly, I am convinced, beyond a reasonable doubt, that the failure to require the State

to elect did not endanger Appellant’s right to a unanimous verdict.

                             IV - Notice and Opportunity to Defend

        Finally, the fourth purpose of the election requirement is to afford a defendant a fair

opportunity to challenge the State’s case. Defensive efforts must be focused, and if the defendant is

unable to determine which offense the State is proceeding upon, he must defend against all of the

offenses, to the detriment of his defense to the actual incident. Most defendants have limited

resources in time, money, or manpower for a proper investigation. Without the State’s election, a

defendant might be confronted with fifty or more offenses, and, so confronted, he might disprove

forty-nine yet still be convicted of the fiftieth offense. Crosslin, 235 S.W. at 906. Thus, the election

requirement seeks to prevent a situation that would embarrass the accused by leaving him in doubt

as against which offense he will be called upon to defend. Id.; O’Neal, 746 S.W.2d at 772. However,

in the event that the State’s proof and theory all point to a particular incident, a defendant may be

put on notice which offense the State was relying upon, without an actual election. O’Neal, 746

S.W.2d at 772-73. In such cases, the defendant would not be embarrassed by being left in doubt as

to which offense he would be called upon to defend. Id.

        In this case, Appellant’s defense was that nothing sexual happened between K.M. and

himself, and K.M.’s outcry was the result of repeated questioning by his ex-wife. Of course, if the

State had elected a particular offense, whether it was the undifferentiated incidents, the incident

where oral was added, the incident in Tyler’s room, or the incident at Appellant’s father’s home,

Appellant could have sought to recall K.M. as a witness and focused a re-examination of K.M. on
                                                                                                   12

that particular instance. Perhaps he could have drawn out inconsistencies by repeated questioning.

While any such inconsistencies might undermine K.M.’s credibility, said inconsistencies would not

constitute a change in Appellant’s defensive theory of the case that nothing sexual happened at all

and that K.M.’s outcry was a fabrication. Furthermore, to what extent, if any, the election followed

by a more extensive cross-examination of K.M. might undermine K.M.’s credibility would be highly

speculative. Even if we felt the need to speculate as to this matter, we are restricted to do so based

on the record before us, and there is nothing in the record concerning any of the offenses that would

lead me to believe that a more extensive cross-examination on any particular offense would

undermine K.M.’s credibility enough to create reasonable doubt as to that particular offense. For this

reason and because of the nature of Appellant’s defense, it was not prejudiced by the failure to

require the State to elect. Unlike a case where a defendant, faced with evidence of multiple offenses,

may be able to marshal an alibi for some of the offenses and justifications and affirmative defenses

for other offenses, Appellant’s defense here was a blanket denial of wrongdoing. It seems obvious

that the defense would have been the same even if the State elected any of the four incidents. I

believe Appellant was not denied an adequate opportunity to defend himself against the charged

offense.

                                      V - Continuing Offense

       As Judge Cochran recognized in her concurring opinion in Dixon, our bedrock procedural

protections are not designed for situations such as the case before us involving generic,

undifferentiated, ongoing acts of sexual abuse of young children. Dixon, 201 S.W.3d at 737. Penal

statutes, such as the aggravated sexual assault statute involved in this case, are intended to

criminalize “one discrete criminal offense at one discrete moment in time.” Id. She suggested that
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the Legislature enact a statute focusing upon a sexually abusive relationship that is marked by a

pattern or course of conduct of various sexual acts. Id. The Legislature responded by enacting section

21.02 of the Penal Code, criminalizing continuous sexual abuse of a young child or children. Act of

June 15, 2007, 80th Leg., R.S., ch. 593, § 1.17, 2007 Tex. Gen. Laws 1120, 1127 (current version

at Tex. Penal Code Ann. § 21.02 (West 2011 & Supp. 2016)). The statute was designed for cases like

this one, and if Appellant was charged under the statute, the issue involving election of offenses

before the Court today would have been avoided.

       With those thoughts, I join the majority opinion in this case.



Filed: November 1, 2017
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