Dixon, Anthony ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-1576-05

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ANTHONY DIXON, Appellant

v.

THE STATE OF TEXAS

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ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS BRAZORIA COUNTY

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   Price, J., filed a dissenting opinion in which Meyers and Johnson, J.J., joined.

DISSENTING OPINION

It is debatable whether the complainant testified to one discrete occurrence, and one hundred additional, uncharged occurrences, or one hundred incidents of sexual assault that occurred in exactly the same manner every time (except for one daytime incident). This ambiguity stems from the State's mode of questioning, which asked what "would" the appellant do, rather than what "did" the appellant do. If we consider the testimony as a description of a single incident, combined with general testimony of one hundred other occurrences, O'Neal v. State ⁽¹⁾ clearly controls, and the error at failing to elect was "harmless" in that there was no danger that the defendant or the jury would be genuinely confused as to the incident upon which the State was relying to convict.

Nevertheless, the majority does not read the record in this way. Neither did the court of appeals. Instead, the majority reads the complainant's testimony as a description of one hundred occurrences of the same conduct and says that "all" of the one hundred occurrences were presented with "equal specificity" - which is to say, with almost no specificity at all. ⁽²⁾ The majority then asserts that the appellant "was not entitled to be protected from admission of evidence of extraneous sexual offenses committed by him against a child" because Texas Code of Criminal Procedure Article 38.37 "permits the admission of these offenses to show the previous and subsequent relationship between appellant and the child victim." ⁽³⁾ It is true that Article 38.37 allows for the admission of uncharged misconduct for relevant purposes. But it does not allow for admission of uncharged misconduct for any and all purposes, and it remains incumbent on the State to prove up a discrete offense for which it will rely to convict, and to elect the incident it will rely upon to convict when it proves up more than one. Article 38.37 in no way permits the State to prove a single indicted count by presenting unelected, undifferentiated evidence of one hundred incidents.

Further, I disagree that Garcia v. State ⁽⁴⁾ stands for the proposition that the failure to elect in this case was harmless because the State was not bound by the date alleged in the indictment. Garcia does not address harm resulting from the failure to elect. Garcia merely stands for the proposition that the State is not bound to the specific date of an indictment, and that the "on or about" language in an indictment has the primary purpose of establishing that the State is not barred by the applicable statute of limitations. ⁽⁵⁾ Thus, the State need not prove an exact date in order to convict.

This proposition in no way, however, allows the State to prove the indicted charge by presenting an array of undifferentiated, uncharged misconduct, without electing to proceed upon a specific, discrete incident. The State must still provide evidence of a discrete incident (even if the date is uncertain) to prove any given charged offense beyond a reasonable doubt and, when evidence of other occurrences is admitted (say, under Article 38.37), it must still provide the defendant with notice by electing the incident it will rely upon for conviction, to differentiate that incident from all the other, uncharged-but-admissible incidents. To hold otherwise is an invitation for the State to throw multiple, non-specific accusations of misconduct at a defendant in hopes of convicting him, not because it has proved a discrete incident beyond a reasonable doubt, but because it has proved enough amorphous misconduct that the jury believes he is a criminal in a more general sense.

Further, with one hundred undifferentiated incidents to consider as evidence of one charged offense, there is a distinct danger that the jurors will not only fail to reach a unanimous verdict in convicting the defendant, but that they could convict on as many as twelve different incidents. Whatever the jeopardy implications, clearly such a verdict would meet neither the unanimous jury guarantee of the Texas Constitution, ⁽⁶⁾ nor the "substantial majority" requirement of the Sixth Amendment. ⁽⁷⁾ Error of this kind vitiates the entire jury verdict, calling into question whether the appellant received the jury trial guaranteed by the Sixth Amendment at all. ⁽⁸⁾ Accordingly, I do not agree that the trial court's error in failing to require an election when the State sought to prove a single count with evidence of one hundred, unelected, undifferentiated incidents is harmless error.

I respectfully dissent from the judgment of the Court to reverse the court of appeals.

Filed: September 13, 2006

Publish.

1.

746 S.W.2d 769 (Tex. Crim. App. 1988).

2.

Slip op. at 6.

3.

Id., at 7.

4.

981 S.W.2d 683 (Tex. Crim. App. 1998).

5.

Id., at 686.

6.

Tex. Const., art. V, § 13.

7.

See Johnson v. Louisiana, 406 U.S. 356, 362 (1972).

8.

U.S. Const. amend. VI; see Sullivan v. Louisiana, 508 U.S. 275, 279-80 (1993) (charging error relating to definition of burden of proof not subject to harm analysis because it wholly deprives defendant of the jury verdict the Sixth Amendment entitles him to).