Dixon, Anthony v. State ( 2005 )

Reversed and Remanded and Majority, Concurring, and Dissenting Opinions filed July 21, 2005

Reversed and Remanded and Majority, Concurring, and Dissenting Opinions filed July 21, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01259-CR

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ANTHONY DIXON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 43,408

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C O N C U R R I N G    O P I N I O N

The majority opinion is correct in its application of current case law and precedent.  According to Phillips, the State=s refusal to elect one episode of sexual assault and the trial court=s failure to require the State to do so is error of constitutional magnitude, requiring a constitutional harm analysis under Texas Rule of Appellate Procedure 44.1(a).  Phillips v. State, 130 S.W.3d 343, 351 (Tex. App.CHouston [14th Dist.] 2004, State=s pet. granted; appellant=s pet. ref=d).  The majority opinion correctly applies the constitutional error standard and correctly concludes the error is harmful because the evidence describes general statements of sexual assault rather than one specific incident, allowing for a non-unanimous verdict.  Farr v. State, 140 S.W.3d 895, 901 (Tex. App.CHouston [14th Dist.] 2004, pet. granted).

However, there is currently a conflict in the courts of appeals as to whether to apply a constitutional or non-constitutional harm analysis.  Compare Phillips, 130 S.W.3d at 351 (applying constitutional harm analysis) with Wilson v. State, 3 S.W.3d 223, 226 (Tex. App.CWaco 1999, pet. ref=d) (applying non-constitutional harm analysis), and Cates v. State, 72 S.W.3d 681, 696-97 (Tex. App.CTyler 2001, no pet.) (adopting non-constitutional analysis based on Wilson).  The Court of Criminal Appeals has recently decided to review Phillips and Farr with the likely goal of resolving the conflict among the courts of appeals. In the case at bar, however, even a non-constitutional error analysis shows that the error is harmful to appellant and therefore warrants a new trial.

Non-constitutional errors are to be disregarded unless they affect substantial rights.  Tex. R. App. P. 44.2(b).  An error affects a substantial right when the error had a substantial and injurious effect or influence in determining the jury's verdict.  King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).  In Johnson v. State, 43 S.W.3d 1, (Tex. Crim. App. 2001), the Court of Criminal Appeals explained the non-constitutional harm analysis, stating:

If, when all is said and done, the conviction is sure [sic] that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand . . . [b]ut if one cannot say, with fair assurance . . . that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry . . . is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

Johnson, 43 S.W.3d at 4 (quotations omitted).  Our state constitution requires unanimity in all felony trials.  See Tex. Const. art. V, ' 13.  A unanimous jury verdict ensures that the jury agrees on the facts underlying an offense and not merely on the violation of a statute.  Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000). The unanimity requirement is not met when a jury risks convicting the defendant on different acts instead of agreeing on the same act for conviction.  Id.

The Waco Court of Appeals conducted a non-constitutional harm analysis on nearly identical facts in Wilson. Wilson, 3 S.W.3d at 226.  In that case, the State=s evidence focused on two specific incidents of sexual assault for which the jury could have convicted the defendant and other general statements of abuse from the complainant for which the jury also could have convicted the defendant.  Id. at 227.  The Wilson court held that the failure to elect a specific offense led to a potential lack of unanimity in the verdict.  See id.  Consequently, the failure to elect had Amore than a slight influence on the verdict@ and affected the defendant=s rights sufficiently to require a new trial.  Id; but see Cates, 72 S.W.3d at 696-97 (holding failure to elect with indistinct complainant testimony was harmless, without considering unanimity requirement).

The facts in the instant case present the error more succinctly.  Due to the high number of incidents described by the complainant, each juror could have chosen to convict appellant based on a separate incident.  The possibility that the jury convicted appellant without agreeing on a specific instance of criminal conduct had Amore than a slight influence@ on the verdict.  Under this court=s precedent, failure to elect is constitutional error and the majority opinion correctly applies the harm analysis for constitutional error.  Nevertheless, a failure to elect among multiple episodes of conduct warrants a new trial even under a non-constitutional harm analysis.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Majority, Concurring, and Dissenting Opinions filed July 21, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.  (Anderson, J., majority.)  (Hudson, J., dissenting.)

Publish C Tex. R. App. P. 47.2(b).