            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

       Y EARY, J., filed a concurring opinion.

                                CONCURRING OPINION

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

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

the charge against him was harmless. In so holding, the Court employs the standard for

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

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

dimension, which mirrors the standard the United States Supreme Court has mandated for

errors of federal constitutional dimension, in Chapman v. California, 386 U.S. 18 (1967).
                                                                                           Owings — 2


That is the test this Court deemed in Phillips v. State, 193 S.W.3d 904, 913-14 (Tex. Crim.

App. 2006), and Dixon v. State, 201 S.W.3d 731, 734 (Tex. Crim. App. 2006), to be

appropriate for judging the harm inflicted by election errors. Although this may not be the

case in which to revisit Phillips, I write to suggest that, on some future occasion, the Court

should take a second look to determine whether it might be more appropriate to apply the

standard for harm governing non-constitutional errors in this context.

        Phillips first declared election error to be of constitutional dimension based upon two

considerations: 1) its bearing on a defendant’s state constitutional right to a unanimous jury

verdict; and 2) its notice implications. 193 S.W.3d at 913-14. Neither of these considerations

ultimately convinces me that election error itself directly violates any constitutional

provision.

        With respect to jury unanimity, we have made it clear since Phillips that a defendant

is entitled to a jury instruction, and the trial court is “obligated” to give it, requiring the jury

to agree on a particular act that satisfies the charging instrument before it may convict

him—regardless of whether he has requested that the State be forced to elect at the close of

its case-in-chief. Cosio v. State, 353 S.W.3d 766, 776 (Tex. Crim. App. 2011).1 Given that

he can insist on a jury instruction to preserve his right to a unanimous verdict, a defendant


        1
          The trial court also failed in this case to give a jury instruction that would have required the
jury to agree to a particular incident upon which to convict. But Appellant neither objected to the jury
charge on this account, nor complained of the omission on appeal. Owings v. State, 507 S.W.3d 294,
296 (Tex. App.—Houston [1st Dist.] 2016). Thus, that constitutional issue is not before us.
                                                                                   Owings — 3


is able to opt for an election—or not—purely as a matter of strategy. Id. He can ask for an

election and thereby force the State to select the incident it thinks best satisfies the “on or

about” allegation in the indictment. In doing so, however, the defendant forfeits his right to

the protection of the Double Jeopardy Clause to insulate him from prosecution for any of the

other incidents the State has proven during its case-in-chief. Alternatively, he can choose not

to insist on an election, choose to defend himself as best he can against all of the incidents

that might serve to satisfy the “on or about” charge against him, leave it to the jury to select

whichever incident, if any, it thinks best satisfies the charge in keeping with the trial court’s

jury unanimity instruction, and later invoke the double jeopardy protection against further

prosecution for any of those incidents. See Bonilla v. State, 452 S.W.3d 811, 831-33 (Tex.

Crim. App. 2014) (Price, J., dissenting) (explaining the strategy considerations that underlie

the defendant’s decision whether to force the State to elect). When the decision whether to

force an election is so much a matter of trial strategy, and the right to a jury-unanimity

instruction remains inviolate regardless of which course a defendant chooses, it is hard to

credit Phillips’s conclusion that election error itself is of constitutional dimension.

       Nor does the election option necessarily implicate notice so substantially as to invoke

principles of due process or due course of law, as Phillips somewhat summarily concluded.

193 S.W.3d at 913-14. Notice is ordinarily a question of what a defendant knows his

exposure will be before trial commences, and in Texas it usually comes from the charging
                                                                                         Owings — 4


instrument. See George E. Dix & John M. Schmolesky, 42 T EXAS P RACTICE: C RIMINAL

P RACTICE AND P ROCEDURE § 25:123, at 199 (3d ed. 2011) (“Whether a charging instrument

provides sufficient specificity to give the accused the trial preparation notice to which he is

entitled must be determined from the fact of the charging instrument. * * * The rationale

for this . . . seems to be based in part on the proposition that notice must be provided by the

charging instrument itself.”). Defendants are presumed to know that an indictment alleging

they committed an offense “on or about” a particular date will support a conviction for any

commission of the alleged offense occurring anterior to the indictment and within the

applicable period of limitations. Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App.

1997). We have held that this lack of specificity in the date of the offense does not cause a

charging instrument to fail to meet the notice requirements of Article I, Section 10, of the

Texas Constitution. Garcia v. State, 981 S.W.2d 683, 685-86 (Tex. Crim. App. 1998); T EX.

C ONST. art. 1, §10. When the State proves more than one commission of the offense that will

satisfy its pleading, all occurring within the limitations period, the law permits the State—and

a defendant is presumably aware that the law permits the State—to select the instance of

commission of the offense to submit to the jury as proof of the charged offense.2 The

defendant knows before trial has even begun that he has the option either: 1) to force an

election, and thereby avoid having to defend against conviction for every act the State has


       2
         Every other incident the State has proved is then rendered essentially an “extraneous offense,”
subject to the circumscriptions and limiting instructions accorded by law.
                                                                                 Owings — 5


proven in satisfaction of the indictment; or 2) to attempt to defend against each potential act

of commission of the offense the State may prove, but later invoke double jeopardy should

the State ever attempt to retry him for any of those incidents.

       Certainly, when the defendant requests an appropriate election, but the trial court

denies it, it is plainly error insofar as it deprives the defendant of this legitimate choice.

O’Neal v. State, 746 S.W.2d 769, 772 (Tex. Crim. App. 1988) (“[O]nce the State rests its

case in chief, in the face of a timely request by the defendant, the trial court must force the

State to make its election. Failure to do so constitutes error.”); Crosslin v. State, 235 S.W.

905, 906 (Tex. Crim. App. 1921) (same). And he may, if his strategic preference was to force

an election, be compelled unexpectedly to defend against all of the incidents the State can

marshal in support of its pleading, instead of only one as was his preference. He may even

be forced to request a continuance in order to prepare to defend against those incidents he

had assumed he would not have had to refute (but for the trial court’s failure to grant his

request to force the State to elect). He may then complain on appeal of both the trial court’s

failure to force the election and its failure to grant a continuance. But neither of these

appellate claims seems necessarily to derive from constitutional due process or due course

of law principles. See Garcia, 981 S.W.2d at 686 (defendant who is surprised by State’s

evidence in satisfaction of its “on or about” allegation should ask for a postponement, but the

notice provision of Article I, § 10, is not implicated). Of course, the defendant knew from
                                                                                      Owings — 6


the outset that the trial court might deny his request for an election, however erroneously. It

is difficult to see how, at least as a matter of constitutional notice, he has been kept in the

dark. In my view, we may have been too hasty in Phillips to identify a constitutional notice

dimension to election error.3

       If I am right, then election error of the sort involved in this case should be measured

for harm against the standard that appears in Rule 44.2(b), which is the standard for non-

constitutional error, rather than Rule 44.2(a), which governs constitutional errors. T EX. R.

A PP. P. 44.2(a) & (b). We should be asking whether we should disregard the trial court’s

failure to grant Appellant’s request to force the State to elect in this case because it did not

“affect substantial rights.” To be sure, if we can say beyond a reasonable doubt, as the Court

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

that it could not in any way have affected his substantial rights. Thus, it does not matter in

the present case which harm standard we employ, and because the parties were not asked to

brief the question of whether we should adhere to Phillips’s adoption of the constitutional

harm standard, this may not ultimately be the case for resolving that question.

       With these remarks, I concur in the result.

FILED:         November 1, 2017
PUBLISH



       3
          This is not to say that a failure to give a jury instruction requiring unanimity would not
constitute error of constitutional dimension. See note 1, ante; Cosio v. State, 353 S.W.3d at 776.
