Dixon, Anthony v. The State of Texas--Appeal from 23rd District Court of Brazoria County

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

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 43,408

D I S S E N T I N G O P I N I O N

Where one act of intercourse is alleged in the indictment and more than one act of intercourse is shown by the evidence in a sexual assault trial, the general rule is that the State must elect the act upon which it will rely for conviction. O=Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). The reason for the rule is to protect the accused (1) from the introduction of extraneous offenses, (2) from prejudice arising solely from the sheer number of alleged offenses, (3) by ensuring a unanimous verdict, and (4) by giving him notice of the particular offense upon which the State intends to rely. Phillips v. State, 130 S.W.3d 343, 349 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). These are all laudable reasons for the rule requiring an election by the State. However, A. . . the rule follows where its reason leads; where the reason stops, there stops the rule.@[1]

Here, the complainant, a six-year-old child, was sexually assaulted on a regular basis. Of the approximately one hundred assaults, all took place in the complainant=s bed and all, but one, occurred at night. On account of the complainant=s minority, she could not temporally distinguish one assault from another. In light of the circumstances, what kind of election was possible? Appellant suggests the State could have elected to rely upon the one Adaytime@ offense. Certainly, that would have been one means of distinguishing a specific offense. However, I can find no authority to suggest that the State, due solely to the victim=s minority, must elect the one Adaytime@ offense to the exclusion of ninety-nine Anighttime@ offenses. Moreover, the State had other means of electing a specific offenseCit could, for example, have chosen the first assault, the tenth assault, the fifty-seventh assault, etc. In this regard, an election was Atheoretically@ possible. Thus, in Atheory,@ the trial court erred in refusing to compel the State to make such an election. However, appellant bears the burden of showing some actual, not just theoretical, harm. Hughes v. State, 897 S.W.2d 285, 296 (Tex. Crim. App. 1994); Webber v. State, 29 S.W.3d 226, 236 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d); Johnson v. State, 981 S.W.2d 759, 764 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d).

Appellant suggests he was prejudiced by the possibility of a non-unanimous verdict. Unanimity in this context means that each and every juror must agree that the defendant committed the same, single, specific criminal act. Thanh Cuong Ngo v. State, No. PD-0504-04, 2005 WL 600353, at *4 (Tex. Crim. App. Mar. 16, 2005). The nature of the evidence presented here, however, defies any attempted unanimity of the verdict. The complainant testified generally about what occurred during a typical assault. She then added that she was the victim of approximately one hundred such assaults. An older victim may well have been able to distinguish one offense from another by date, some distinctive fact, some unusual bit of conversation, etc. Here, however, the victim was a very young child. If the State had Aelected@ to rely upon assault number twenty-nine, the jurors would have had no better means of distinguishing it from the ninety-nine extraneous assaults than did the complainant. Thus, in an abstract sense, four jurors could have convicted appellant based on the evidence offered regarding assault number forty-three, four jurors could have convicted him on the evidence of assault number sixty-nine, and four jurors could have convicted him on the evidence of assault number eighty-two because the evidence for all these assaults was the same. Because the jurors could not possibly distinguish one offense from another, unanimity of their verdict regarding a specific offense was also impossible.

Perhaps this fact alone should dictate our disposition of this case. However, unless we are prepared to say that young victims may be violated with impunity, I am not disposed to hold that the constitutional right to a unanimous verdict precludes the prosecution of cases like the one presented here. First, while the constitution requires that district court juries Abe composed of twelve persons,@[2] it does not expressly require unanimity to the degree specified in Ngo, i.e., Athe same, single, specific criminal act.@ Ngo, 2005 WL 600353, at *4.[3] Likewise, no statute expressly requires this degree of unanimity.[4]

Further, because the assaults were indistinguishable from one another, jeopardy automatically attached to every assault. Walker v. State, 473 S.W.2d 499, 500 (Tex. Crim. App. 1971). Thus, appellant was not prejudiced by the danger of repeated prosecutions. Ex parte Goodbread, 967 S.W.2d 859, 860B61 (Tex. Crim. App. 1998); Ex parte Nagle, 48 S.W.3d 213, 216 (Tex. App.CSan Antonio 2000, no pet.).

Had the State Aelected@ the first assault, the tenth assault, or the last assault, appellant would have had no greater notice of the offense upon which the State intended to rely; no greater assurance of real unanimity of the verdict; and no more meaningful limiting instruction regarding Aextraneous@ offenses. In short, an election under the facts presented here would not have aided appellant one whit.[5]

I am not unmindful of our responsibility to see that appellant has had a fair trial. Further, I would favor a reversal of appellant=s conviction if a meaningful election (1) could have been made, and (2) it would have accomplished the aims alluded to in Phillips. 130 S.W.3d at 349. But such is not the case here. The harm espoused by appellant is absolutely theoretical. Appellant contends a reversal of the conviction is just, A[b]ut justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.@ Snyder v. Massachusetts, 291 U.S. 97, 122 (1934). Here, a reversal of the conviction would protect no substantial or constitutional right of the accused. Accordingly, I would find the error harmless beyond any reasonable doubt.

For these reasons, I respectfully dissent.

/s/ J. Harvey Hudson

Justice

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

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

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

[1] K. Llewellyn, The Bramble Bush at 157B58 (Dobbs Ferry, New York: Oceana, 1981).

[2] See Tex. Const. art. V, ' 13:

Grand and petit juries in the District Courts shall be composed of twelve persons, except that petit juries in a criminal case below the grade of felony shall be composed of six persons; but nine members of a grand jury shall be a quorum to transact business and present bills. In trials of civil cases in the District Courts, nine members of the jury, concurring, may render a verdict, but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it. When, pending the trial of any case, one or more jurors not exceeding three, may die, or be disabled from sitting, the remainder of the jury shall have the power to render the verdict; provided, that the Legislature may change or modify the rule authorizing less than the whole number of the jury to render a verdict.

[3] In Ngo, the appellant attempted to use a stolen credit to purchase a couple of beers at a karaoke bar. Ngo, 2005 WL 600353. He was charged with credit card abuse. The Legislature has broadly defined the offense of credit card abuse as being committed when a person presents or uses a credit card knowing he does not have the consent of the cardholder, knowing the card is fictitious, knowing the card is stolen, knowing the card has been revoked, etc. Ngo was indicted for credit card abuse by (1) stealing a credit card, (2) receiving a stolen credit card, and (3) fraudulently presenting a credit card to pay for goods or services. Historically, this would have been viewed as an allegation of various manner and means of committing a single offense. See Hendrix v. State, 150 S.W.3d 839, 855B58 (Tex. App.CHouston [14th Dist.] 2004, pet. pending) (Hudson, J., concurring). The rationale being that the State ought to be permitted to allege all of the various statutory violations arising in a single criminal transaction (i.e., in a single Aoffense@) in one indictment to meet the contingencies of evidence that might develop in trial with the view of securing but one conviction. Id.

In light of Ngo and similar decisions by the Court of Criminal Appeals, a potential double jeopardy crisis is now brewing. See, for example, Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999). If each manner and means of committing credit card abuse is now a separate offense for purposes of jury unanimity, then it is necessarily a separate offense for jeopardy purposes. Thus, in Ngo, for example, the appellant could be separately charged, convicted, and punished for multiple offenses of credit card abuse arising out of a single transaction. No mystical seer is needed to predict that, in time, the right of jury unanimity will be relaxed in favor of more stringent double jeopardy protections.

[4] See Tex. Code Crim. Proc. Ann. art. 33.01 (Vernon 1989):

(a) Except as provided by Subsection (b), in the district court, the jury shall consist of twelve qualified jurors. In the county court and inferior courts, the jury shall consist of six qualified jurors.

(b) In a trial involving a misdemeanor offense, a district court jury shall consist of six qualified jurors.

[5] Appellant argues the State could have elected to prosecute the one Adaytime@ offense to distinguish it from the ninety nine Anighttime@ offenses. Certainly, that is true, but to what advantage? Appellant does not inform us how an election of the Adaytime@ offense have aided him in any greater fashion than if the State had elected the twenty seventh offense.