NO. 07-06-0307-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C MARCH 12, 2007

______________________________

RANDALL DIX ON, Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 290 TH DISTRIC T COURT O F BEXAR COUNT Y; NO. 2004-CR-7578; HON. SHARON MCCRAE, PRESIDING

_______________________________ Memorandum Opinion

________________________________ Before QUINN, C.J., and HANCOCK and PIRT LE, JJ. Randall Dixon appea ls his conv ictions for aggravated sexual assault and indecency with a child by

contending th at 1) the trial cour t abused its discretion in refusing to admit certain evidence w hich denied him h is constitut ional rig ht of confrontation a nd crossexamination, and 2) the jur y charg e was v ague and confusing and allow ed for less than a unanimous ver

dict. We affirm the judgment.2

Issue 1 - Ri

ght of Confrontat

ion Approximately one year pr ior to the in cident which w as the subject of this prosecution, the victim, appellant’s daughter, alleged that her s chool bus dri ver touched her breasts, w hich was one of the acts appell ant was acc used of having performed on her. App ellant sought to q uestion the v ictim about the a ccusation but w as denied the opp ortu nity. Now, he contends that thi s violat ed his rig ht of confrontation. This gr ound, however, was not menti oned at trial. Instead, appell ant contended that the evide nce should be admitted due to i ts relev ance. W hen a defend ant’s objection potentia lly encompasses complaints under both the r ules of evidenc e and the confrontati on clause, the objection is

not sp ecific enough to preserve error if the def endant does not clearly articulate that the confrontati on clause is involv ed. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005). Given this and the f act that his objection at bar f ails to comport with that raised at

trial, the complaint was not preserv ed. See Fox v. Stat

e, 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 defen dant’s confrontation clause argument). Addi tion ally, the trial court may exclude relevant evidence if its value is substantially outweigh ed by its risk o f confus ion or improper prejudice. T EX
. R. E VID
. 403. Here, underlyin g appellant’s complaint is theinsinuation that the prior all egation was false. And, because it was purportedly false, it sh ould have b een admitted to discredit h is accuser. Yet, appellant did n ot establish t hat the accusati on w as false. Rather , he asks us to surmise that it w as since the bus driver was simpl y transferr

ed elsewher

e. This we choose3

not to do. That he was transferred to another school does not establish innocence, or, at least, a trial co urt could have reasonably concluded. Thus, we find no abuse of discretion in excludi ng the evi dence. And, the i ssue is ov erruled. Issue 2 - Jur

y Charge Next, appe llan t com plai ns th at th e jury cha rge was vague and confusing wi th 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 count1, they shoul d consider co unt 2. Count 1 involved agg ravated sexual assault by

digital penetration. C ount 2 invol ved indecenc y by c ontact wit h the complainant’s genitals, and count 3 involved indecency by contact with the complainant’s breasts. Given the la nguage of the c harge , app ella nt be lieve d tha t the jury co uld h ave convicted him on less than a unanimous ver dict. We overrule the issue. Adefendant is entitl ed to a unanimous verdict in felon y cases. T EX
. C ODE C RIM
. P ROC
. A NN
. art. 36.29(a) (Vernon 2006). In Francisv. State, 36 S.W.3d 121 ( Tex. C rim. App. 20 00), the de fendant was charged with one count of indecency by either breast touching or genital touching. The court foun d that those allegations co nstitu ted t wo differentoffenses an d by allowing use of the word “or,” the jury could have reach e d less than a unanimous ve rdict, i.e . six members could have found the defendant committed the offense by breast touching and sixmembers could have found the defendant committed the offense by genit al touching. Id. at 125. The same is not true here. The acts were charged under differen t counts, and the instru ction wasintended to permi t the jury to find appellant

guilty of onlycount 1 and count 3 (count 2 being subsumed wi thin a guil ty finding4

on count 1) or of only count 2 and count 3, w ith a separate verdict on each. Se e Bottenfield

v. State, 7 7 S

. W. 3 d 349, 359 (Tex. App.–Fort Worth 2002, pet. ref’d) (noting
a distincti on with Francisin that the defendant in Bottonfield was charg ed in two s eparate counts with two separ

ate and distinct offense s upon which the jury was required to reach a unanimous ver

dict as to eac h count). Assuming arguendo that the verdict could h ave permitte d that sugg ested by appellant, we find the circumstance to be harm less. The jury for eperson informed the tri al court that the verdicts were unanimous. So too were the jury members individually polled rega rding whether th ose were t heir ver dicts. Each responded that it was. There f ore , nothing of record suggests that t he jury’ s verdic t on each count w

as anything other than unanimous despite appellant’s contentions. We also note that appellant’s d efense was that none of the allegati ons happened, and thus the j ury w as re quired to make an all-or- nothing deci sion for each count

. See Martinez v. State, No. 03-0 5-0345- CR, 2006 Tex. App. L EXIS 4969 at *2 1-22 (Tex. App.–Austin June 9, 2006, pet. ref’d) (notin g in itsharm analysis that the defendant did no t argue he was g uilty of some a cts alleged but not others). This too viti ated the potential for harm. Accordingl y, we affirm the judgment.

Brian Quinn Chief Justice Do not publish

.