Francis v. State

• Decision Date: 06 December 2000
• Citation: 36 S.W.3d 121
• Parties: (Tex.Crim.App. 2000) JOSEPH CLAYTON FRANCIS, Appellant v. THE STATE OF TEXAS NO. 1132-98
• Court: Texas Court of Criminal Appeals

Page 121

36 S.W.3d 121 (Tex.Crim.App. 2000)

JOSEPH CLAYTON FRANCIS, Appellant v. THE STATE OF TEXAS

NO. 1132-98

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

December 6, 2000.

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS TARRANT COUNTY

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

Holland, J., delivered the opinion of the Court on rehearing in which Meyers, Mansfield, Price, Womack and Johnson, JJ., join.

Following our opinion on original submission, we granted the State's Motion for Rehearing. We withdraw our prior opinions in this case and enter the following opinion of the Court.

Appellant was charged with a single count of indecency with a child. The State introduced evidence of four acts of indecency during its case-in-chief, but elected to proceed on only two of those acts. Throughout the trial, appellant asked the trial court to require the State to elect between the two different acts of indecency, but the trial court denied these requests. The trial court also denied appellant's requested charge that would have required the State to prove that appellant committed both alleged acts of indecency. Appellant was convicted of one count of indecency with a child.

The court of appeals affirmed the conviction. See Francis v. State, No. 2-97-068-CR (Tex. App.-Fort Worth April 16, 1998) (not designated for publication). Relying on Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991), it concluded that the jury charge merely included different means of committing the charged offense of indecency with a child - not separate acts of indecency. See id. We granted appellant's petition for discretionary review to consider whether "the court of appeals erred in holding that the charge submitted to the jury allowing a conviction on less than an unanimous verdict was not error." We reverse and remand.

Facts

Appellant was charged with one count of indecency with a child in a single paragraph indictment. The State presented evidence of four distinct acts of the alleged indecency with a child. Each of these acts occurred at a different time and date, with two acts involving an improper touching of the victim's breasts and two acts involving an improper touching of the victim's genitals.

At the close of the State's evidence, appellant requested that the trial court require the State to elect between the four acts. The State elected to pursue a conviction on two of the incidents, one involving the touching of the victim's breasts and one involving the touching of the victim's genitals. Appellant objected, arguing that the general one-paragraph indictment limited the State to prosecuting only one act of sexual indecency. If the State was not limited to one act, appellant asserted that the jury could come to a non-unanimous verdict, with some jurors believing beyond a reasonable doubt that appellant touched the victim's breasts and others believing that he touched the victim's genitals. The trial court overruled appellant's objections.

When the trial court asked the parties for any objections to the jury charge, appellant first reiterated his request that the State be required to elect between the two acts of indecency. The trial court again denied that request. In response to that ruling, Appellant stated,

In light of the Court's ruling that there will not be an election, we would object to the language that says "engage in sexual contact by touching the breast or genitals of [victim]." We would object to using the term "or" and request that the charge be read "breast and genitals of [victim]."

The court overruled the objection, allowing a conviction on a finding that appellant did "engage in sexual contact by touching the breast or genitals of victim." (emphasis added). Appellant was found guilty and sentenced to five years and a $5000 fine, probated.

Analysis

In addressing appellant's point of error, it is necessary to first determine whether charge error, if any, was preserved by appellant's objection and request as stated above. Article 36.15 of the Texas Code of Criminal Procedure states,

The defendant may, by a special requested instruction, call the trial court's attention to error in the charge, as well as omissions therefrom, and no other exception or objection to the court's charge shall be necessary to preserve any error reflected by any special requested instruction which the trial court refuses.

Tex. Code Crim. Proc. Ann. art. 36.15 (emphasis added). In Stone v. State, this Court applied Article 36.15. The defendant in Stone requested a particular instruction in the charge on the issue of probable cause to stop a vehicle pursuant to Article 38.23 of the Code of Criminal Procedure. 703 S.W.2d 652, 654 (Tex. Crim. App. 1986). The Court first noted that the defendant's requested charge instruction was incorrect - it misstated the law and constituted an impermissible comment on the weight of the evidence. See id. at 655. But the Court held that the requested charge need not be correct - it must only be "sufficient to call the trial court's attention to the omission in the court's charge." Id. Since the trial court in Stone understood that appellant was objecting to the omission of an instruction regarding the officer's right to stop a vehicle, it was sufficiently "apprised of appellant's objection to omissions in the charge." Id.; see also 43 Dix and Dawson, Texas Practice: Criminal Practice and Procedure § 42.104 (1995).

While Stone dealt with a complete omission of an instruction from the charge, the same concept applies to errors in the charge. See Tex. Code Crim. Proc. Ann. art. 36.15. In the instant case, appellant requested that the charge be changed to include an "and" instead of an "or." This request would have created an erroneous charge. Appellant, however, had previously argued the effect of the conjunctive charge on the jury verdict. Before his objection to the charge, appellant asserted,

Judge, we would still urge that [the State] be required to elect between the two manners of committing the offense between touching breasts or touching the genitals because the way the indictment is set out in a single court single paragraph, it would authorize the jury to essentially have a non-unanimous verdict if some voted - believed beyond a reasonable doubt he touched breasts and another group believed beyond a reasonable doubt he touched genitals.

Considering appellant's objection to the charge, his repeated attempts to require the State to elect, and the unique nature of the indictment and the incidents alleged in this case, appellant's objection to the jury charge was sufficient to apprise the trial judge of the potential charge error. See Tex. Code Crim. Proc. Ann. art. 36.15; see also Chapman, 921 S.W.2d 694 (Tex. Crim. App. 1996); Stone, 703 S.W.2d at 655. Therefore, appellant properly preserved the charge error, if any, for appellate review.

Next, we address appellant's complaint that the jury charge erroneously allowed a conviction on less than an unanimous verdict. Contrary to the court of appeals's and the State's assertions, Kitchens is inapplicable to the instant case. In Kitchens, the defendant was charged with capital murder and sentenced to death. On appeal, he complained that the trial court erred in submitting alternative theories of committing capital murder in a single application paragraph in the charge. He argued that the verdict was not unanimous since six members of the jury may have found him guilty of murder in the course of sexual assault, while the other six members of the jury may have found him guilty of murder in the course of robbery. See id. at 257. The Court stated that "[i]t is appropriate where the alternate theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted." Id. at 258.

Unlike the charge in Kitchens, however, alternate theories of committing the same offense were not submitted to the jury in the instant case. Rather, two separate offenses were submitted to the jury in the disjunctive. The relevant portion of the charge read:

[I]f you find from the evidence beyond a reasonable doubt that on or about the 1st day of November, 1992, in Tarrant County, Texas, the Defendant, JOSEPH CLAYTON FRANCIS, did . . . engage in sexual contact by touching the breast or genitals of . . . .

(emphasis added). The State introduced evidence of four separate incidents. In two different incidents, the appellant touched the victim's breasts. In two separate occasions, the appellant touched the victim's genitals. There was never a single incident alleged in which the appellant touched both the breasts and the genitals of the victim.

When appellant requested that the State be asked to elect, the State proceeded on the incident in which the appellant touched the victim's breast and the second incident in which the appellant touched the victim's genitals. These incidents constitute two separate offenses. See Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992) (stating that "those who commit multiple discrete assaults against the same victim are liable for separate prosecution and punishment for every instance of such criminal conduct."). Therefore, Kitchens, which considered one offense with varying theories of commission, is distinguishable from this case.

The United States Supreme Court's holding in Schad v. Arizona, 501 U.S. 624 (1991), also does not control the instant case. Schad examined a similar issue to the one presented in Kitchens. The plurality concluded that a conviction under a jury instruction, which did not require agreement on whether the defendant was guilty of felony murder or premeditated murder, was not unconstitutional. See id. at 627.

Portions of the Schad opinion lend guidance, however, in solving appellant's issue. Justice Scalia...