Randall Wayne Dixon v. The State of Texas--Appeal from 290th District Court of Bexar County
Annotate this Case
Download PDF
NO. 07-06-0307-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 12, 2007
______________________________
RANDALL DIXON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 290TH DISTRICT COURT OF BEXAR COUNTY;
NO. 2004-CR-7578; HON. SHARON MCCRAE, PRESIDING
_______________________________
Memorandum Opinion
________________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Randall Dixon appeals his convictions for aggravated sexual assault and indecency
with a child by contending that 1) the trial court abused its discretion in refusing to admit
certain evidence which denied him his constitutional right of confrontation and crossexamination, and 2) the jury charge was vague and confusing and allowed for less than a
unanimous verdict. We affirm the judgment.
Issue 1 - Right of Confrontation
Approximately one year prior to the incident which was the subject of this
prosecution, the victim, appellant’s daughter, alleged that her school bus driver touched
her breasts, which was one of the acts appellant was accused of having performed on her.
Appellant sought to question the victim about the accusation but was denied the
opportunity. Now, he contends that this violated his right of confrontation. This ground,
however, was not mentioned at trial. Instead, appellant contended that the evidence
should be admitted due to its relevance.
When a defendant’s objection potentially
encompasses complaints under both the rules of evidence and the confrontation clause,
the objection is not specific enough to preserve error if the defendant does not clearly
articulate that the confrontation clause is involved. Reyna v. State, 168 S.W.3d 173, 179
(Tex. Crim. App. 2005). Given this and the fact that his objection at bar fails to comport
with that raised at trial, the complaint was not preserved. See Fox v. State, 175 S.W.3d
475, 483-84 (Tex. App.–Texarkana 2005, pet. ref’d) (finding a relevancy objection to lack
sufficient specificity to put the trial court on notice of the defendant’s confrontation clause
argument).
Additionally, the trial court may exclude relevant evidence if its value is substantially
outweighed by its risk of confusion or improper prejudice. TEX . R. EVID . 403. Here,
underlying appellant’s complaint is the insinuation that the prior allegation was false. And,
because it was purportedly false, it should have been admitted to discredit his accuser.
Yet, appellant did not establish that the accusation was false. Rather, he asks us to
surmise that it was since the bus driver was simply transferred elsewhere. This we choose
2
not to do. That he was transferred to another school does not establish innocence, or, at
least, a trial court could have reasonably concluded. Thus, we find no abuse of discretion
in excluding the evidence. And, the issue is overruled.
Issue 2 - Jury Charge
Next, appellant complains that the jury charge was vague and confusing with
respect to the application paragraphs. Allegedly, it told the jurors that if they found
appellant guilty of count 1, they should next consider count 3, but that if they found
appellant not guilty of count 1, they should consider count 2. Count 1 involved aggravated
sexual assault by digital penetration. Count 2 involved indecency by contact with the
complainant’s genitals, and count 3 involved indecency by contact with the complainant’s
breasts. Given the language of the charge, appellant believed that the jury could have
convicted him on less than a unanimous verdict. We overrule the issue.
A defendant is entitled to a unanimous verdict in felony cases. TEX . CODE CRIM .
PROC . ANN . art. 36.29(a) (Vernon 2006). In Francis v. State, 36 S.W.3d 121 (Tex. Crim.
App. 2000), the defendant was charged with one count of indecency by either breast
touching or genital touching. The court found that those allegations constituted two
different offenses and by allowing use of the word “or,” the jury could have reached less
than a unanimous verdict, i.e. six members could have found the defendant committed the
offense by breast touching and six members could have found the defendant committed
the offense by genital touching. Id. at 125. The same is not true here. The acts were
charged under different counts, and the instruction was intended to permit the jury to find
appellant guilty of only count 1 and count 3 (count 2 being subsumed within a guilty finding
3
on count 1) or of only count 2 and count 3, with a separate verdict on each. See
Bottenfield v. State, 77 S.W.3d 349, 359 (Tex. App.–Fort Worth 2002, pet. ref’d) (noting
a distinction with Francis in that the defendant in Bottonfield was charged in two separate
counts with two separate and distinct offenses upon which the jury was required to reach
a unanimous verdict as to each count).
Assuming arguendo that the verdict could have permitted that suggested by
appellant, we find the circumstance to be harmless. The jury foreperson informed the trial
court that the verdicts were unanimous. So too were the jury members individually polled
regarding whether those were their verdicts. Each responded that it was. Therefore,
nothing of record suggests that the jury’s verdict on each count was anything other than
unanimous despite appellant’s contentions.
We also note that appellant’s defense was that none of the allegations happened,
and thus the jury was required to make an all-or-nothing decision for each count. See
Martinez v. State, No. 03-05-0345-CR, 2006 Tex. App. LEXIS 4969 at *21-22 (Tex.
App.–Austin June 9, 2006, pet. ref’d) (noting in its harm analysis that the defendant did not
argue he was guilty of some acts alleged but not others). This too vitiated the potential for
harm.
Accordingly, we affirm the judgment.
Brian Quinn
Chief Justice
Do not publish.
4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.