Phillips, Robert v. The State of Texas--Appeal from 228th District Court of Harris County

Affirmed in Part and Reversed and Remanded in Part and Majority and Dissenting Opinions filed November 20, 2003

Affirmed in Part and Reversed and Remanded in Part and Majority and Dissenting Opinions filed November 20, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00193-CR

NO. 14-02-00194-CR

NO. 14-02-00195-CR

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ROBERT PHILLIPS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause Nos. 881466, 881467, 881468

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

I disagree with the majority s reversal of two of appellant s convictions. As correctly recognized in the majority opinion, the election requirement can implicate several distinct rights of a defendant including: being provided fair notice of the charged offense, assuring that extraneous offense evidence not be used as proof of guilt, and assuring that a conviction be based on a unanimous jury verdict. Although issues two, three, and nine of appellant s brief all assign error to the trial court s failure to require the State to make the required election and provide the corresponding instructions in the jury charge, these three issues collectively claim that appellant was denied only his rights to fair notice of the offense and opportunity to defend, limitation on the use of extraneous offense evidence, and effective appellate review of the sufficiency of the evidence. Although none of these issues allude in any way to appellant s right to a unanimous jury verdict, the majority s harm analysis and resulting reversal is based largely on the harm potentially arising from a denial of that right. Because I believe these issues should instead be decided based on the rights which they contend were violated and any harm arising therefrom, I do not agree with the majority s sustaining of those issues on the unasserted violation of the right to a unanimous jury verdict. Nor do I believe that a violation of that right can always be presumed upon a failure to elect among multiple incidents, as the majority suggests, even where, as here, there is no difference in the credibility of the evidence of the various incidents, such that jurors would have had any reason to differ on whether a defendant was guilty of one versus another.

/s/ Richard H. Edelman

Justice

Judgment rendered and Majority and Dissenting Opinions filed November 20, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman. (Fowler, J. majority.)

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