In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-13-00355-CR 

RONNIE MACK BARNARD, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 54th District Court 

McLennan County, Texas 

Trial Court No. 2013-631-C2, Honorable Matt Johnson, Presiding 

 

April 8, 2015 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

A thirteen-count indictment accused appellant, Ronnie Mack Barnard, of 

aggravated sexual assault of a child, indecency with a child by contact, and sexual 

assault of a child. The State abandoned three of the counts and proceeded to trial on 

the remaining ten. A jury found appellant guilty of each count. The range of 

punishment was enhanced by two prior convictions. The jury assessed punishment at 

life in prison on each count. The trial court imposed the sentences and ordered they run 

consecutively. We will affirm.
2

Analysis

In his sole issue, appellant argues the trial court abused its discretion by failing to 

sua sponte order the State to elect the specific acts it relied on for conviction.

This complaint was not raised in the trial court and is therefore not preserved for 

our review. TEX. R. APP. P. 33.1(a)(1); see Tennyson v. State, No. 05-00-01194-CR, 

2001 Tex. App. LEXIS 3442, at *3 (Tex. App.—Dallas May 25, 2001, no pet.) (not 

designated for publication) (citing appellate rule 33.1(a) and stating “[b]ecause appellant 

did not request an election after the State rested, we conclude appellant waived his right 

to require an election at that time”). While appellant contends he may assert his 

complaint for the first time on appeal because it arises from unobjected-to jury charge 

error that caused him egregious harm, based on the following analysis we find the trial 

court did not err. The egregious harm standard for unobjected-to jury charge error 

applies only after the appellate court first finds error in the jury charge. Tolbert v. State,

306 S.W.3d 776, 779 (Tex. Crim. App. 2010) (citing Posey v. State, 966 S.W.2d 57, 61 

(Tex. Crim. App. 1998)). 

Moreover, even if properly preserved for our review appellant’s issue lacks any 

merit. As a general rule, when the State’s evidence shows multiple instances of 

conduct conforming to a single indictment allegation, the State must elect the instance 

on which it will rely for conviction. Martinez v. State, 225 S.W.3d 550, 555 (Tex. Crim.

App. 2007); O'Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). Ordering an 

election by the State “forces it to formally differentiate the specific evidence upon which 

it will rely as proof of the charged offense from evidence of other offenses or misconduct 
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it offers only in an evidentiary capacity.” Phillips v. State, 193 S.W.3d 904, 910 (Tex. 

Crim. App. 2006). The election requirement also provides protection of such 

fundamental rights of the defendant as notice and unanimity thus ensuring “both that the 

defendant is aware of precisely which act he must defend himself against, and that the 

jurors know precisely which act they must all agree he is guilty of in order to convict 

him.” Id. 

Thus, after the State rests its case-in-chief, provided the defendant makes a 

timely request, the trial court must order the State to elect the act it relies on for 

conviction. Phillips, 193 S.W.3d at 909; O'Neal, 746 S.W.2d at 771. The trial court has 

no discretion to respond otherwise. Phillips, 193 S.W.3d at 909; O'Neal, 746 S.W.2d at 

771. In such instances, the court’s failure to order an election is error. O’Neal, 746 

S.W.2d at 772.

But the State is not obligated to make an election and error is not shown absent 

the defendant’s timely motion for election. O’Neal, 746 S.W.2d at 771 n.3; Crawford v. 

State, 696 S.W.2d 903, 906 (Tex. Crim. App. 1985) (citing Bates v. State, 165 Tex. 

Crim. 140, 305 S.W.2d 366, 368 (1957)) (on showing of more than one act of 

intercourse, on the defendant’s motion, the State must elect and failure to so order is 

error); Jiminez v. State, No. 07-07-00389-CR, 2009 Tex. App. LEXIS 7555, at *3 n.3 

(Tex. App.—Amarillo Sept. 29, 2009, pet. refused) (mem. op., not designated for 

publication) (noting absent a motion by the defendant to require an election, the State is 

not required to make an election); Molina v. State, No. 05-05-01599-CR, 2006 Tex. App. 

LEXIS 9670, at *2-3 (Tex. App.—Dallas Nov. 8, 2006, pet. refused) (not designated for 
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publication) (appellant did not request an election and appellate court found no authority 

suggesting the trial court should have ordered an election on its own motion).

In the present case, appellant made no motion requesting an election by the 

State. We are not shown, nor do we find, any authority even intimating the trial court 

was nevertheless obligated to order an election sua sponte. Such a requirement would 

effectively make ordering an election a ministerial task. Importantly, it would deny the 

defendant a significant strategic option1and allow a disjointed error-preservation 

procedure.2 Appellant’s reliance on O’Neal is misplaced. The opinion does not support 

the notion that a trial court has discretion to order an election sua sponte. Rather, the 

O’Neal court stated, “Once the State rests its case in chief, in the face of a timely 

request by the defendant, the trial court must order the State to make its election. 

Failure to do so constitutes error.” 746 S.W.2d at 772 (emphasis supplied); see id. at 

771 n.3 (“[A]ppellant preserved error by his motion to require election. Absent such a 

motion by the defendant, the State is not required to make an election”). 

We find that even had appellant preserved his complaint, the trial court had no 

obligation to sua sponte order an election. 

 

1 See Cosio v. State, 353 S.W.3d 766, 775 (Tex. Crim. App. 2011) (“A defendant 

may choose not to elect so that the State is jeopardy-barred from prosecuting on any of 

the offenses that were in evidence. Punishment would then also be limited to the 

charged offense only, and, given the jeopardy bar, there is no possibility that the 

defendant would receive an additional stacked sentence, based on any of the offenses 

in evidence, down the line” (footnote omitted)). 

2 A defendant would necessarily have to object on the record pointing out to the 

trial court, in a timely manner, its failure to sua sponte order an election. See TEX. R.

APP. P. 33.1(a)(1). 
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Conclusion

Appellant’s issue is overruled and the judgments of the trial court are affirmed.

James T. Campbell

 Justice

Do not publish.