Richard Charles OWINGS, Jr., Appellant v. The STATE of Texas

NO. PD-1184-16

Court of Criminal Appeals of Texas.

DELIVERED: November 1, 2017

Randall J. Ayers, Houston, for Appellant.

Katie Davis, Assistant District Attorney, Harris County, Houston, Stacey Soule, State's Attorney, Austin, for the State.

Richardson, J., delivered the opinion of the Court in which Keller, P.J., and Keasler, Hervey, Alcala, Newell, Keel, and Walker, JJ., joined.

Appellant, Richard Charles Owings, Jr., was convicted by a jury of aggravated sexual assault of a child1 and sentenced to thirty years in prison. The First Court of Appeals reversed Appellant's conviction, holding that "the trial court committed harmful constitutional error in failing to require the State to make an election of the incident upon which it relied for conviction."2 We agree that the trial court *146committed constitutional error by failing to require the State to make an election of the incident upon which it relied for conviction. However, we disagree with the appellate court's harm analysis. We hold that, under these particular facts, the trial court's erroneous failure to require the State to make an election was harmless. We reverse and remand the case to the First Court of Appeals to address Appellant's remaining point of error.3

**BACKGROUND**

Appellant was the step-grandfather of the complainant, K.M.-he was previously married to K.M.'s maternal grandmother ("Grammy"). Two years after Grammy divorced Appellant, nine-year-old K.M. disclosed to Grammy that Appellant had sexually abused her on numerous occasions. Appellant was arrested and charged with aggravated sexual assault of a child under the age of fourteen. The indictment alleged only one incident of sexual abuse in the form of genital-to-genital contact:

> Richard Charles Owings, Jr., hereafter styled the Defendant, heretofore on or about January 1, 2010, did then and there unlawfully, intentionally and knowingly cause the sexual organ of [K.M.], a person younger than fourteen years of age and not the spouse of the Defendant, to contact the sexual organ of the Defendant.

Grammy testified at Appellant's trial that she and Appellant were married for seven years-from 2003 to 2011. She said that her daughter, M.M., and granddaughter, K.M., lived with them off and on during that time. Grammy stated that she and K.M. were very close, and even when K.M. was not living with them K.M. would often spend the night. Grammy said that she first became suspicious of Appellant when he would, on occasion, spend time with K.M. in their bedroom behind locked doors. Grammy would knock on the door, and it would take a few minutes for Appellant to come open the door. Grammy remembered one Thanksgiving when K.M. came to the dinner table after she had been in their bedroom with Appellant, and she had a "terrified" look on her face.

K.M.'s mother, M.M., also testified that she remembered specific times when Appellant and K.M. were in his bedroom with the door locked. These incidents caused her to be suspicious of Appellant.

The outcry witness was Lisa Holcomb, a forensic interviewer with the Children's Assessment Center in Harris County. The following excerpt came from the trial transcript of Ms. Holcomb's testimony when she was asked to describe in detail the statements that K.M. conveyed to her about the alleged sexual abuse:

> She said because my Pawpaw, he did a horrible thing to me. His name is Richard. How is he related to you? He's my Grammy['s] husband. He would take me when my grandma would be at work. It's before my mom and dad got together. He would take me into the bedroom, he would lock the door and get out his knife and put it by the bed. He would take my clothes off. He told me if I tried to run away, he would stab me with his knife. If I told anybody, he would hurt other little girls. She said, I asked her to tell me about the knife. She said it was like a pocketknife. He always kept it by the desk. It was silver and open. She said, he was sitting on the bed; and he told me to sit on the bed.

> *147I said, tell me everything that happened. And she said he would push me on the bed and he would get undressed, he would do horrible things. He would get on top of me and start going up and down. He took everything off of her. I asked her where her body was. She said she fell face first. I asked what part of your body was he on? She said, he was on my private area. And that was the front of her body.... She said, he would turn me over. I said what part of his body-what part of his body is on your private area? And she said, his private area.

> And I asked, what would he be doing while he was on you like that? She said, going up and down. And I asked what his private area was doing? She said up and down. On top of her body, she didn't like it at all. His private area, she said was hard and his hands were everywhere. And she described by motion that he was touching her at her chest at that time, and he would tell her just-he would just tell her not to move. I asked her if she was able to do anything or say anything, and she shook her head no. I asked would anything happen with his private area? She shook her head, no.

> I said did you ever feel or see anything coming out of it at all? She said there was stuff coming out [of] it, and it would be on the bed. When Grammy come [*sic* ] home, she would bang on the door and tell him to unlock the door, and he would hurry up and try to hide it with a blanket and clothes. I asked her how much it would happen? She said a lot. It happened since I was four. He stopped at eight. When she was six and seven, she explained that they moved out [but] that they were still visiting Grammy a lot.

> She also disclosed another incident. She related to a time when she was staying in her Uncle Ty's room, and that her Grammy and her mom went to another room. They were spending the night. Her Pawpaw came in there with his knife, and at that time, he made her do something different, which she explained was that he took my head and he made me put my mouth on his derriere. He walked in the room, put his knife on the desk, took off his clothes and hers. After that he went up and down on me, then he made me put my mouth on his private area. And I asked where her body, where [*sic* ] when uncle walked in, and she described his was on the pillow, I was right by his private. He was making me put my mouth on his private. And she said he took my head and was jamming on it, and at that time she demonstrated by motioning her hand to the back of her head. She said the room was very dark. The TV was on, and she explained that he hid their clothes somewhere. And when my uncle came in, he had just walked in there, looked at them, closed the door and walked away. And Pawpaw hurried up and put his clothes on. She said she was about five or six at that time.

> * * *

> Then she described the last incident; she was detailed as saying that this was the time that he had gotten kicked out of his apartment....

K.M. testified that Appellant's sexual abuse of her was ongoing. Although the court of appeals viewed K.M.'s testimony as describing four single separate incidents, we read K.M.'s testimony differently. The first "incident" K.M. talked about, which was consistent with Lisa Holcomb's testimony, was actually a description of what consistently happened on numerous occasions when Appellant took her into his bedroom and locked the door. K.M. used words describing how Appellant "would *148do" the same thing each time: "He would take my clothes off" (she said she "would usually wear pants"); "he'd take [his clothes] off;" he would "put me on the bed;" "he would get on top of me;" and "stick his penis in my vagina." K.M. also described how Appellant "would put the knife on the night stand" and threaten to hurt her or someone else if she told anyone: "Once he was on top of me before he stuck his penis in my vagina, he would show me the knife." K.M. described how she "would just lay there." When asked "if Grammy was home at all during this time," K.M. responded by saying, "sometimes when it, when she would come home, that's when it stopped because there was a lock on the door, so he would always lock it and so she would bang on the door." K.M. emphasized that he "always" locked the door. When Grammy would "bang on the door," K.M. said that Appellant "would hurry up and put his clothes on and have me put my clothes on."

K.M. then mentioned three other specific incidents when Appellant did "the same thing" to her that he always did-take off her clothes, take off his clothes, and put his penis in her vagina. But on those other three instances, he also forced her to perform oral sex on him. The first instance she described occurred "in Grammy's room," when Appellant did "the same thing that he did the first time, but this time he had [K.M.] put [her] mouth on his penis.... First, he would do the same thing as he would do, then all of a sudden he forced my mouth on his penis." Another time, she was in her Uncle Ty's room. She said she thought it "might have been the only time someone was there at the house, and [she] was there in [her] uncle's room, and [she] was watching a movie, and it was dark outside, and [Appellant] came in and he did, he did both things to [her]." She described how, on that occasion in her uncle's bedroom, Appellant took off her nightgown, he got on top of her, and he put his penis in her vagina, and then after that he put his penis in her mouth. K.M. then described a third distinct occasion when Appellant took her to his father's house. He and Grammy were divorced. He picked K.M. up from her mother's apartment, purportedly to take her to an arcade. Instead, Appellant took K.M. to his father's house. She described how he "took [her] to his bedroom;" and "stuck his penis in [her] vagina, and he put [her] mouth on his penis."

K.M. testified that, when asked a few times by her mother and grandmother-who were both clearly suspicious of Appellant's behavior with K.M.-if anyone was touching her inappropriately, K.M. would deny that anything out of the ordinary was going on. K.M. said she did this because she was afraid of Appellant and what he might do to her. K.M. said that it was only after Appellant moved out of Grammy's house that she felt safe enough to disclose the sexual abuse to Grammy.

After the State rested, defense counsel requested that the trial court force the State to elect which "one" of the "four" incidents they will be relying on to convict. The trial court denied the election request.

Appellant then testified in his defense. He denied committing any sexual abuse against K.M.:

> Q. Did you ever have occasion to do anything sexually inappropriate [to K.M.]?

> A. No.

> Q. Did anything like that ever occur when [K.M.] was five in your bedroom?

> A. Absolutely not.

> Q. Did you ever point a knife at her?

> A. Never.

> * * *

> *149Q. Did you threaten to harm other children?

> A. Never.

> Q. Did you threaten to harm any animals?

> A. I would never do that.

> Q. [K.M.] also described another occasion when the same thing happened; do you remember her talking about that?

> A. Yes, I do.

> Q. Did that ever happen?

> A. No.

> Q. Do you know what time, date, place, season she was even referring to?

> A. Not really.

> Q. She also talked about an experience in Tyler's room. Did you ever do anything inappropriate to [K.M.] in Tyler's room?

> A. No.

> Q. On any occasion?

> A. No, sir.

> * * *

> Q. And you heard an occasion where [K.M.] told us about what happened at your father's house. Did anything happen between you and [K.M.] in your father's house?

> A. It did not.

On cross examination, Appellant theorized as to why K.M. might have been lying about being sexually abused by Appellant:

> A. What I'm saying is apparently when she's been asked the same question by her grandmother repeatedly and her response isn't good enough, eventually she's going to say something else. So she went ahead and complied; and I think it built up from there. And bless her heart, she's in a position now, she's talked herself in a position she has to defend.

> Q. So, you're not saying [K.M.] is lying, you're just saying [her grandmother] has been coaching her?

> A. Yes, [her grandmother] has encouraged her to say this.... She's getting a lot of positive attention.... She's getting a lot of care and attention. She's getting a lot of special treatment, positive reenforcement, I guess you could say.

> Q. But she got that beforehand with you is what you just told me?

> A. Poor her, I guess, she's a victim now. So she's the star of her own little drama, right?

> * * *

> Q. She's just lying about the sex abuse?

> A. That's right.

The jury convicted Appellant of aggravated sexual assault of a child and sentenced him to 30 years in prison. However, the First Court of Appeals reversed Appellant's conviction and remanded the case for a new trial.4 It held that the trial court committed harmful constitutional error when it failed to require the State to elect which specific instance of sexual abuse it relied upon for conviction.5 The State filed a petition for discretionary review, claiming that the trial court's failure to require an election by the State should not have resulted in a reversal because, even if it was error, it was harmless. For the reasons set out below, we agree with the State that the error was harmless.

*150***ANALYSIS***

When one particular act of sexual assault is alleged in the indictment, and more than one incident of that same act of sexual assault is shown by the evidence, "the State must elect the act upon which it would rely for conviction."6 Once the State rests its case in chief, upon a timely request by the defense, the trial court must order the State to make an election.7

In this case, the indictment alleged one offense describing one act of genital-to-genital contact. However, K.M. testified that Appellant put his penis in her vagina on numerous occasions. Hence, she testified to more than one act of genital-to-genital contact. Therefore, because the defense made a timely request, we agree with the court of appeals that the trial court erred by not requiring the State to elect the act of genital-to-genital contact upon which it would rely for a conviction.8

The erroneous failure to require the State to make such an election is a constitutional error.9 The issue we must decide is whether this error was harmful or harmless. When conducting a constitutional harm analysis of an election error, the reviewing court must reverse a judgment of conviction "unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment."10 This Court has held that this determination is made by analyzing the error in the context of the following four purposes underlying the election requirement:

> • to protect the accused from the introduction of extraneous offenses;

> • to minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty;

> • to ensure unanimous verdicts; that is, all of the jurors agreeing that one specific incident, which constituted the offense charged in the indictment, occurred;

> • and to give the defendant notice of the particular offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend.11

Thus, in order to find beyond a reasonable doubt that the erroneous failure to require *151an election was harmless (i.e., it did not contribute to the conviction), we must determine that these four purposes behind the election requirement were still met.

**A. *The First Purpose: To protect the accused from the introduction of extraneous offenses***

Evidence of other crimes, wrongs, or acts committed by Appellant against K.M. were admissible for purposes of showing the state of mind of Appellant and K.M., and the previous and subsequent relationship between them.12 For that reason, Appellant was not entitled to protection from the introduction of evidence of extraneous offenses involving K.M.13

Nevertheless, the defense requested, and the trial court gave, a limiting extraneous offense instruction under Texas Code of Criminal Procedure, Article 38.37 :

> Ladies and gentlemen, you are instructed that evidence of other crimes, wrongs, or acts committed by the Defendant against the child who is the victim of the alleged offense in this indictment shall be admitted for its bearing on relevant matters including the state of mind of the Defendant and the child and the previous and subsequent relationship between the Defendant and the child.

Therefore, the jury was made aware that evidence of acts of sexual abuse other than genital-to-genital contact could only be considered for the limited purpose as instructed. Thus, the failure to require an election did not prevent the first purpose from being met.

**B. *The Second Purpose: To minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty***

In the case of *Dixon v. State* , the child complainant testified that the act of sexual abuse occurred "one hundred times," and except for one time during the day, the abuse always occurred at night.14 In *Dixon* , we held that the second purpose was met because "[t]he 'multiple offenses' were all recounted by the same source-the child."15 In this case, as in *Dixon v. State* , "we see no risk the jury found [A]ppellant guilty of an offense that was not proven to its satisfaction beyond a reasonable doubt."16 All of the incidents of sexual abuse in this case were recounted by the same source-K.M. This case did not involve the presentation of evidence of different activities from different sources that a jury might perceive to "add up" to the defendant being guilty even though no individual offense was proven beyond a reasonable doubt.17

In closing argument, although the prosecution brought up the testimony of other witnesses, the prosecutor emphasized that those witnesses provided "background" information which lent credibility to K.M.'s version of events. Grammy's testimony told about "all of those times that the door was locked and she would bang and bang and bang for him to open that door while they were in that room, and it took him forever to get there." K.M.'s mother, M.M., gave the jurors "the context of the *152relationship between the two of them" and told the jurors about "those instances where she tried to open the door and it would be locked."

There was very little variance in how K.M. described the genital-to-genital contact. And, but for the times when K.M. said Appellant put his penis in her vagina *and* she was also forced to perform oral sex, she described a sequence of events that happened repeatedly in the same way and under the same circumstances in the same place. In closing argument, the prosecution emphasized that K.M. was "consistent in her testimony" when she was "describing the same thing," and that the genital-to-genital contact occurred "all the time," "in that room," where K.M. would lay there "stiff."

K.M. described repeated genital-to-genital contact that occurred in Appellant's bedroom, and the indictment alleged only genital-to-genital contact. Despite certain varying details, these acts of abuse could reasonably be viewed as a general pattern. Therefore, whether the sequence of events-they were behind locked doors, in Appellant's bedroom, he took off her clothes, he took off his clothes, her put her on his bed, and he put his penis in her vagina-"was alleged to have occurred one, ten, fifty, or one hundred times does not by itself impact the believability of the child's story."18 K.M. was either credible or she was not; she described the ongoing, repeated instances of genital-to-genital contact with enough detail to support a finding of guilt. We hold that the second purpose was met.

**C. *The Third and Fourth Purposes: To ensure a unanimous verdict and to give the defendant notice of the particular offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend***

Likewise, we are confident that the State's failure to elect did not result in a non-unanimous verdict. As noted above, the prosecution clearly focused on the same act of genital-to-genital contact that K.M. said occurred on numerous occasions in Appellant's bedroom. The court of appeals believed the facts of this case more closely paralleled those in *Phillips v. State* , because "it was completely unclear to the jury which act the State would rely upon for conviction."19 We disagree. Although, theoretically, it could be said that some jurors could convict based only on the one incident in Uncle Ty's room, some jurors could convict based only on the one incident in Appellant's father's house, and some jurors could convict based only on one of the multiple incidents in Appellant's bedroom, the likelihood of that is almost infinitesimal. The prosecution's case depended on the credibility of K.M. Appellant's defense was that the sexual abuse did not occur at all. There is no basis anywhere in the record for the jury to believe that one incident occurred and another did not. Either they all did or they all did not. Thus, unlike in *Phillips* , there was no danger here that some jurors might have believed that one incident occurred and another or others did not.20

*153Although K.M.'s testimony supports a finding that Appellant's sexual organ contacted her sexual organ on the other occasions when there was also mouth-to-genital contact, it is highly unlikely that any juror voted to convict Appellant because they believed that one of those acts occurred and the acts in Appellant's bedroom did not.

We find, therefore, that the jurors would not have convicted Appellant without unanimously believing that he committed sexual assault in the form of genital-to-genital contact in Appellant's locked bedroom in the manner described by K.M. Thus, we are satisfied that, despite the trial court's failure to require an election by the State, there is "no remotely significant risk" of a non-unanimous verdict.21

We also perceive no risk that Appellant was deprived of adequate notice of which offense to defend against. Appellant's defense was the same as to each incident K.M. testified to-that no sexual abuse occurred at all.22 Appellant's defense was a blanket denial that any incident of sexual abuse happened. Appellant did not have different explanations for the different incidents. He had no alibi for any of the alleged incidents. Therefore, Appellant's defense was not inhibited by the error and he was not deprived of proper notice or the opportunity to defend.

The issue at trial was whether the jury believed K.M. or whether the jury believed Appellant. As we noted in *Cosio v. State* , Appellant's "defense was that he did not commit any of the offenses and that there was reasonable doubt as to each of the four incidents because [the complainant] was not credible.... His defense was essentially of the same character and strength across the board."23 And in this case, as in *Cosio* , "[t]he jury was not persuaded that [Appellant] did not commit the offense or that there was any reasonable doubt. Had the jury believed otherwise, they would have acquitted [Appellant]...." K.M. was either credible or not. The additional acts of genital-to-genital contact described as occurring with the additional unindicted acts of oral sex, all *154described in the latter three incidents, did not make K.M.'s testimony any more or less credible.24 Although there was no election, the third and fourth purposes behind the election requirement were still met.

***CONCLUSION***

This was not a difficult decision for the jury. The "Filed" stamps on the last page of the jury charge and on the verdict form indicate that the jury deliberated for two hours and twenty minutes-the court record reflects that the jury retired to deliberate at approximately 11:27 a.m., and they reached a verdict at 1:47 p.m. There were no notes sent out by the jurors indicating confusion of the issues or disputes over testimony, and there was no indication from the jurors that they were not unanimous about which incident was the charged offense. Moreover, there was no dispute regarding K.M.'s age at the time of the alleged abuse. She was well under the age of 14 when all of the alleged sexual abuse occurred. After examining the record, we are confident beyond a reasonable doubt that the error in failing to require an election was harmless-it did not contribute to Appellant's conviction. Consequently, we reverse the judgment of the First Court of Appeals and remand this case to that court to address Appellant's remaining point of error.

Yeary, J., filed a concurring opinion.

Walker, J., filed a concurring opinion.

Yeary, J., filed a concurring opinion.

***CONCURRING OPINION***

The Court today holds that the trial court's error in failing to grant Appellant's request to force the State to elect which particular act of sexual assault it would rely upon to prove the charge against him was harmless. In so holding, the Court employs the standard for determining whether trial error is harmful contained in Rule 44.2(a) of the Rules of Appellate Procedure. TEX. R. APP. P. 44.2(a). This is the rule that governs errors of constitutional dimension, which mirrors the standard the United States Supreme Court has mandated for errors of federal constitutional dimension, in *Chapman v. California* , 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). That is the test this Court deemed in *Phillips v. State* , 193 S.W.3d 904, 913-14 (Tex. Crim. App. 2006), and *Dixon v. State* , 201 S.W.3d 731, 734 (Tex. Crim. App. 2006), to be appropriate for judging the harm inflicted by election errors. Although this may not be the case in which to revisit *Phillips* , I write to suggest that, on some future occasion, the Court should take a second look to determine whether it might be more appropriate to apply the standard for harm governing non-constitutional errors in this context.

*Phillips* first declared election error to be of constitutional dimension based upon two considerations: 1) its bearing on a defendant's state constitutional right to a unanimous jury verdict; and 2) its notice implications. 193 S.W.3d at 913-14. Neither of these considerations ultimately convinces me that election error itself directly violates any constitutional provision.

With respect to jury unanimity, we have made it clear since *Phillips* that a defendant is entitled to a jury instruction, and *155the trial court is "obligated" to give it, requiring the jury to agree on a particular act that satisfies the charging instrument before it may convict him-regardless of whether he has requested that the State be forced to elect at the close of its case-in-chief. *Cosio v. State* , 353 S.W.3d 766, 776 (Tex. Crim. App. 2011).1 Given that he can insist on a jury instruction to preserve his right to a unanimous verdict, a defendant is able to opt for an election-or not-purely as a matter of strategy. *Id.* He can ask for an election and thereby force the State to select the incident it thinks best satisfies the "on or about" allegation in the indictment. In doing so, however, the defendant forfeits his right to the protection of the Double Jeopardy Clause to insulate him from prosecution for any of the other incidents the State has proven during its case-in-chief. Alternatively, he can choose *not* to insist on an election, choose to defend himself as best he can against *all* of the incidents that might serve to satisfy the "on or about" charge against him, leave it to the jury to select whichever incident, if any, it thinks best satisfies the charge in keeping with the trial court's jury unanimity instruction, and later invoke the double jeopardy protection against further prosecution for any of those incidents. *See**Bonilla v. State* , 452 S.W.3d 811, 831-33 (Tex. Crim. App. 2014) (Price, J., dissenting) (explaining the strategy considerations that underlie the defendant's decision whether to force the State to elect). When the decision whether to force an election is so much a matter of trial strategy, and the right to a jury-unanimity instruction remains inviolate regardless of which course a defendant chooses, it is hard to credit *Phillips* 's conclusion that election error *itself* is of constitutional dimension.

Nor does the election option necessarily implicate notice so substantially as to invoke principles of due process or due course of law, as *Phillips* somewhat summarily concluded. 193 S.W.3d at 913-14. Notice is ordinarily a question of what a defendant knows his exposure will be *before* trial commences, and in Texas it usually comes from the charging instrument. *See* George E. Dix & John M. Schmolesky, 42 TEXAS PRACTICE : CRIMINAL PRACTICE AND PROCEDURE § 25:123, at 199 (3d ed. 2011) ("Whether a charging instrument provides sufficient specificity to give the accused the trial preparation notice to which he is entitled must be determined from the fact of the charging instrument. * * * The rationale for this ... seems to be based in part on the proposition that notice must be provided by the charging instrument itself."). Defendants are presumed to know that an indictment alleging they committed an offense "on or about" a particular date will support a conviction for any commission of the alleged offense occurring anterior to the indictment and within the applicable period of limitations. *Sledge v. State* , 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). We have held that this lack of specificity in the date of the offense does not cause a charging instrument to fail to meet the notice requirements of Article I, Section 10, of the Texas Constitution. *Garcia v. State* , 981 S.W.2d 683, 685-86 (Tex. Crim. App. 1998) ; TEX. CONST . art. 1, § 10. When the State proves more than one commission of the offense that will satisfy its pleading, all occurring within the limitations period, the law permits the State-*156and a defendant is presumably *aware* that the law permits the State-to select the instance of commission of the offense to submit to the jury as proof of the charged offense.2 The defendant knows before trial has even begun that he has the option either: 1) to force an election, and thereby avoid having to defend against conviction for *every* act the State has proven in satisfaction of the indictment; or 2) to attempt to defend against each potential act of commission of the offense the State may prove, but later invoke double jeopardy should the State ever attempt to retry him for any of those incidents.

Certainly, when the defendant requests an appropriate election, but the trial court denies it, it is plainly error insofar as it deprives the defendant of this legitimate choice. *O'Neal v. State* , 746 S.W.2d 769, 772 (Tex. Crim. App. 1988) ("[O]nce the State rests its case in chief, in the face of a timely request by the defendant, the trial court *must* force the State to make its election. Failure to do so constitutes error."); *Crosslin v. State* , 90 Tex.Crim. 467, 235 S.W. 905, 906 (1921) (same). And he may, if his strategic preference was to force an election, be compelled unexpectedly to defend against *all* of the incidents the State can marshal in support of its pleading, instead of only one as was his preference. He may even be forced to request a continuance in order to prepare to defend against those incidents he had assumed he would *not* have had to refute (but for the trial court's failure to grant his request to force the State to elect). He may then complain on appeal of both the trial court's failure to force the election *and* its failure to grant a continuance. But neither of these appellate claims seems necessarily to derive from constitutional due process or due course of law principles. *See**Garcia* , 981 S.W.2d at 686 (defendant who is surprised by State's evidence in satisfaction of its "on or about" allegation should ask for a postponement, but the notice provision of Article I, § 10, is not implicated). Of course, the defendant knew from the outset that the trial court *might* deny his request for an election, however erroneously. It is difficult to see how, at least as a matter of constitutional *notice* , he has been kept in the dark. In my view, we may have been too hasty in *Phillips* to identify a constitutional notice dimension to election error.3

If I am right, then election error of the sort involved in this case should be measured for harm against the standard that appears in Rule 44.2(b), which is the standard for non-constitutional error, rather than Rule 44.2(a), which governs constitutional errors. TEX. R. APP. P. 44.2(a) & (b). We should be asking whether we should disregard the trial court's failure to grant Appellant's request to force the State to elect in this case because it did not "affect substantial rights." To be sure, if we can say beyond a reasonable doubt, as the Court does today, that the error did not contribute to Appellant's conviction, then we can also say that it could not in any way have affected his substantial rights. Thus, it does not matter in the present case which harm standard we employ, and because the parties were not asked to brief the question of whether we should adhere to *Phillips* 's adoption of the constitutional harm standard, this may not ultimately be the case for resolving that question.

*157With these remarks, I concur in the result.

Walker, J., filed a concurring opinion.

***CONCURRING OPINION***

I agree with the Court's decision to reverse the judgment of the court of appeals and remand the case for further proceedings. However, I write separately to give greater depth to the harm analysis, especially because some of the purposes served by the election rule may seem obtuse to the uninitiated.

When a trial court errs by failing to require the State to elect, the error is constitutional and subject to harmless error analysis. *Phillips v. State* , 193 S.W.3d 904, 914 (Tex. Crim. App. 2006). Furthermore, for election cases, our harmless error analysis requires examining the four purposes underlying the election requirement and how the defendant might have been harmed by the lack of a proper election to serve each of those purposes. *Dixon v. State* , 201 S.W.3d 731, 734-36 (Tex. Crim. App. 2006). Those purposes are:

> • to protect the accused from the introduction of extraneous offenses;

> • to minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty;

> • to ensure unanimous verdicts; that is, all of the jurors agreeing that one specific incident, which constituted the offense charged in the indictment, occurred;

> • and to give the defendant notice of the particular offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend.

*Phillips* , 193 S.W.3d at 909-10. Our constitutional harm analysis thus requires us to determine whether we are convinced beyond a reasonable doubt that in none of those ways the election error contributed to the defendant's conviction or punishment. *See**Dixon* , 201 S.W.3d at 736. Accordingly, we must determine that the error did not:

> • impair the defendant's protection from the introduction of extraneous offenses;

> • increase the risk that the jury wrongfully convicted the defendant because of the evidence of all of the events together, and not because one or more crimes were proved beyond a reasonable doubt;

> • endanger the defendant's right to have the jurors reach a unanimous verdict on the specific incident that constituted the offense of which the defendant was convicted; or

> • deny the defendant notice of the particular conduct the State relied upon as constituting each offense and an adequate opportunity to defend against the allegation that the defendant engaged in that conduct.

*See**id.* at 734-36.

**I-Protection from the Introduction of Extraneous Offenses**

To the unfamiliar, the first purpose of the election requirement seems contradictory. The time for a defendant to request election is at the end of the State's case in chief. *Crosslin v. State* , 90 Tex.Crim. 467, 235 S.W. 905, 906 (1921) ; *O'Neal v. State* , 746 S.W.2d 769, 772 (Tex. Crim. App. 1988) ; *Phillips* , 193 S.W.3d at 909. At this point in the proceedings, the State may have already presented the extraneous offense evidence to the jury.1 How can an *158election of offenses by the State protect a defendant from extraneous offense evidence after the State has already put that evidence before the jury during its case in chief? The "harm," so to speak, has already been done. The State rang the bell, poisoned the well, and put the skunk in the jury box. The fact that a defendant has committed other offenses is not a fact a jury can easily forget.

While the jury may be unable to forget, the trial court can instruct the jury to consider the extraneous offense evidence, not as evidence of guilt of the charged offense, but for other limited purposes. This is the "protection" contemplated by the first purpose underlying election. How can a court know which evidence is extraneous, and thus which evidence should a defendant be "protected" from via a limiting instruction, until the State has elected which offense it will proceed upon?

"Protection" under the first purpose is probably a misnomer. A limiting instruction does not keep a defendant safe from extraneous offense evidence. It does not guard against or prevent the evidence from being presented. Instead, the "protection" is a mitigating measure-it blunts or softens the damage done by the already presented extraneous offense evidence by instructing the jury that the evidence is to be considered for limited purposes.

That being said, did the error impair Appellant's "protection" from the admission of evidence of extraneous offenses? The majority considers, as part of its analysis, the fact that the extraneous offense evidence was admissible under the Code. Tex. Code Crim. Proc. Ann. art. 38.37 (West Supp. 2016). This fact is, I believe, irrelevant to the election harm analysis, at least in this case, because the evidence was admitted during the State's case, before the time to require an election. Next, the majority recognizes that the trial court gave a limiting instruction. As just discussed, a limiting instruction is the "protection" contemplated by the first purpose. Whether the limiting instruction was actually effective, that is, whether the jury properly did not give the extraneous offense evidence undue significance, is unknown. Absent evidence to indicate otherwise, an appellate court should assume that the jury was able to follow instructions and that it did so. Based on Texas law, the first purpose was not impaired.

**II-Risk of a Conviction Not Proved Beyond a Reasonable Doubt**

The second purpose behind the election requirement is concerned with the possibility that a jury, when faced with evidence of multiple offenses, could unanimously conclude that none of the offenses were proved beyond a reasonable doubt, but the evidence of all of the offenses justifies conviction anyway. *Phillips* , 193 S.W.3d at 910 n.27 ("The jury may have taken both [offenses] into account, and have considered that one or the other was not sufficiently made out to warrant a conviction, but that both together convinced [it] of the guilt of the defendant....") (quoting *Fisher v. State* , 33 Tex. 792, 794 (Tex. 1870) ).

In my view, the risk is minimal that Appellant was convicted because the jury was convinced that he was generally guilty *159of the great multitude of offenses while at the same time not guilty of one beyond a reasonable doubt. This is so because the evidence of each separate incident appears to be enough to convince a jury that Appellant was guilty of the offense beyond a reasonable doubt.

First, regarding the first "incident," which the majority fairly considers to be many undifferentiated offenses,2 the evidence showed that Appellant committed aggravated sexual assault of a child as indicted, by causing K.M.'s sexual organ to contact his own sexual organ. K.M. testified in great detail about how the room was laid out and the general pattern of abuse committed by Appellant. According to K.M.'s testimony, Appellant would put her in the closet, take her clothes off, and then pick her up and put her on the bed. She would cry and tell him to stop, but Appellant would nevertheless get on top of her and stick his penis in her vagina. In my opinion, this testimony is more than enough to get a jury to find the first offense proved beyond a reasonable doubt.

Second, the evidence of the incident with the added oral assault was itself enough to convince a jury that Appellant was guilty beyond a reasonable doubt. K.M. testified that this incident occurred in Appellant's and K.M.'s grandmother's room, just as with the undifferentiated assaults. She then explained that the "same thing" happened that Appellant did the first time (referring to the "first incident" of undifferentiated assaults), but this time he had K.M. put her mouth on Appellant's penis. K.M. testified that this happened after Appellant had put his penis inside of her. Just as with the first undifferentiated offenses, the evidence of the second incident appears to be enough to convince a jury that Appellant was guilty of the offense beyond a reasonable doubt.

Third, the evidence of the incident in Tyler's room appears to be enough to convince a jury that Appellant was guilty of the offense beyond a reasonable doubt. K.M. testified that she was in her uncle's room, watching a movie, and it was dark outside. She testified that Appellant came in and did "both things" to her, referring back to her testimony of the vaginal and oral assault from second incident. She explained that Appellant took his clothes off, got on top of her, and put his penis in her vagina and then he put his penis in her mouth. Like the evidence of the second incident, and the evidence of the first incident, the evidence of the third incident appears to be enough to convince the jury that Appellant was guilty of the offense beyond a reasonable doubt.

Finally, the evidence of the incident at Appellant's father's house appears to be enough to convince a jury that Appellant was guilty. K.M. testified in detail about an incident where Appellant said he was going to take her to an arcade, but instead of taking her to the arcade he took her to his father's home. While there, Appellant showed K.M. around the house until he finally took her into his bedroom there, where he again stuck his penis in K.M.'s vagina and then put her mouth on his penis.

Accordingly, I believe that the evidence as to each of the "four" incidents appears to be enough to convince the jury Appellant *160was guilty beyond a reasonable doubt. I see no risk that the jury decided to convict Appellant simply because the jury was convinced that he was generally guilty due to the evidence of all the offenses, but was not convinced that Appellant was guilty of any specific offense beyond a reasonable doubt.

**III-Danger of a Non-Unanimous Verdict**

The third purpose is concerned with the possibility that a portion of the jury may have found the defendant guilty of one offense, while another portion of the jury may have found the defendant guilty of a different offense. If this occurs, the jury is not unanimous about a specific offense, and the defendant's right to a unanimous verdict would be violated.

Considering the third purpose, the majority is correct in finding that "[t]here is no basis anywhere in the record for the jury to believe that one incident occurred and another did not." However, the majority opinion goes on to say "[e]ither they all did or they all did not." I am concerned with the phrasing used by the majority opinion, and I think that the blanket statement that the jury must either believe that all of the incidents occurred or none of them occurred deserves some further explanation. Of course, it is possible that a jury might decide that a witness's credibility is an all or nothing question. "We think the witness is credible, so we believe everything he said." But a jury could decide that a witness's credibility is nuanced and not subject to a general determination. "We think the witness was credible when he was discussing his background, training, and experience, but we think he was not credible when he was explaining his actions on the day in question." *See**Sharp v. State* , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) ("The jury, being the judges of the facts and credibility of the witnesses, could choose to believe or not believe the witnesses, or any portion of their testimony.") (citing *Esquivel v. State* , 506 S.W.2d 613, 615 (Tex. Crim. App. 1974) ).

Again, the majority is correct in finding that there is no basis in the record for the jury to believe that one incident occurred and another did not. But it is because of that silence in the record that we entrust questions of credibility and demeanor to the jury. *Meekins v. State* , 340 S.W.3d 454, 461 n.32 (Tex. Crim. App. 2011) ("Determinations of witness credibility are left entirely to the fact finder, who is in the unique position to observe the witness' body language, demeanor, tone of voice, and other indicia of credibility."); *Jackson v. Virginia* , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). While appellate records contain *what* a witness said, they almost universally never contain *how* the witness said it. A witness may be nervous, a witness may be visibly sweaty, a witness may testify in an uncharacteristically robotic and rehearsed fashion, a witness may make small hints through body language. These things may be present throughout the witness's time on the stand. They may be present only during particular lines of questioning. All of these things can affect a jury's impression of the witness, but rarely do they make it into the record to be seen by us or the courts of appeals.

The testimony in this case, unlike in *Dixon* , was not almost entirely composed of undifferentiated and unspecific incidents. While the majority fairly construes the first incident as many indistinguishable incidents, there were also three specific incidents as well. The testimony about the undifferentiated incidents may have been more or less credible than the testimony about the incident where oral contact was added, the vaginal and oral incident in *161Tyler's room, or the vaginal and oral incident at Appellant's father's home. And the testimony about any of those three incidents may have been more or less credible than the others. That being said, by its guilty verdict the jury must have found K.M. to be credible. And absent any indication to the contrary, I agree with the majority that, in this case at least, there is no cause to find that the jury found one part of K.M.'s testimony more or less believable than another.

That brings me back to the unanimity concern. For the second incident involving added oral contact, I believe there is no danger that some members of the jury decided to convict Appellant on only the second incident while other jurors decided to convict him on any of the others, especially the first. The oral assault was brought up early in the State's closing argument:

> [K.M.], [K.M.], this intelligent, sweet, good kid, gets up there; and she tells you just exactly the kind of hell that she was living through from the ages of five up until eight. And I know you had it, but at one point in her testimony, you felt it in your gut, you knew it. You knew that you believed her. And maybe it was that moment when she got up there and you heard about all the things that she loved and then that change in her emotion the second that I turned her attention to that 2009 first incident. Or maybe it was that moment when she recalled with such specificity just exactly what her little body was doing when that man put his penis inside of her. She told you, I was laying there; I was stiff. What a vivid detail for a six year old to have to go through, experience when you're involved in unwanted sexual contact. And she tells you that her body was stiff when that was happening.

> Or maybe that moment came for you in your gut when you got to hear about her basically reliving an event that occurred, and you heard from Lisa Holcomb in that interview and she did it for you here today or yesterday, too, when she was demonstrating for you just exactly how he grabbed her head when he forced her mouth on his penis. She was reliving that moment.

> So, when you knew it in your gut and you knew that you believed her then, right then and there, that's guilty.

Rep. R. vol. 5, 75. While this reference in the State's closing argument may have revived a particularly vivid moment during K.M.'s testimony for the jury, the risk that the reference led some jurors to find Appellant guilty of the second incident, but not the others, is slight. The main thrust of the State's argument was directed toward the general pattern of abuse encapsulated in the "first" incident. The reference to K.M.'s testimony about the second incident was not to highlight the incident itself as an offense for the jury to consider guilt or innocence on, but for the purpose of emphasizing K.M.'s credibility, that her testimony was coming from reliving the abuse. Therefore, I do not believe that there was a danger that some members of the jury found Appellant guilty of the second incident but not the first.

For the third incident, there is no danger that some members of the jury decided to convict Appellant on the incident in Tyler's room but not the other incidents. The State just briefly mentioned Tyler in its closing argument to address a possible concern that the jury believed K.M.'s testimony but may have wanted to hear testimony from Tyler for corroboration. The State's argument clearly was not putting emphasis on the incident in Tyler's room. Instead, it was intended to encourage the jury to follow its instinct to believe K.M.'s *162testimony without requiring corroboration. No members of the jury could have taken the brief mention of Tyler as a sign that the incident in Tyler's room is what they should be focusing on in deliberations.

For the fourth incident, where K.M. testified that Appellant said he was going to take her to an arcade (It'z) but instead took her to his father's home where he again assaulted her, there is also no danger that some members of the jury found Appellant guilty of this offense but not the others. The only place in the State's closing argument where that incident was brought up went as follows:

> Let's talk about the Defendant's testimony. He agreed to a lot. I mean, the elements that are before you, he agreed to all of them, he just said there wasn't any sexual contact between the two of them. And you know what else he agreed to just about every single thing that's come across that stand. He told you about the locked doors, the nighties. He tells you about the last excursion out with [K.M.]. He just wants you to believe that nothing was going on during that time.

> And what are the reasons why he wants you to believe that? He wants to tell you, well, she was locking the door. It was irritating to me, but I just let her do it anyway. And she would model for me the clothes that she would put on back there. And what else would he say about that trip to It'z? Well, I didn't feel like it was necessary to actually tell her mom where I was taking her. I just took her to all these different places because I wanted to spend one last time with her.

> So when you think about all the things that he said and he can't even come up with a reason as to why she would lie or who's doing it for or anything like that, and you know that he has every reason in the world to tell you that he didn't do it and you know that you can't trust a word that he has to say. Because at the end of the day, though, when you look at all the pieces and you put it all together, the Defense wants you to just brush this off as coincidences. And yet we have this mountain of coincidences that they need you to suspend reality about and pretend are not occurring.

Rep. R. vol. 5, 85-86. Clearly, the State's closing argument only brought up the incident for a short moment, and the State did not emphasize it as an offense for the jury to consider Appellant's guilt or innocence. It was only brought in as part of the State's argument that Appellant's testimony and reasons should not be believed. Thus, there is no danger that any members of the jury would take this reference as a sign to consider Appellant's guilt on the incident at Appellant's father's house but not the first undifferentiated offenses.

Accordingly, I am convinced, beyond a reasonable doubt, that the failure to require the State to elect did not endanger Appellant's right to a unanimous verdict.

**IV-Notice and Opportunity to Defend**

Finally, the fourth purpose of the election requirement is to afford a defendant a fair opportunity to challenge the State's case. Defensive efforts must be focused, and if the defendant is unable to determine which offense the State is proceeding upon, he must defend against all of the offenses, to the detriment of his defense to the actual incident. Most defendants have limited resources in time, money, or manpower for a proper investigation. Without the State's election, a defendant might be confronted with fifty or more offenses, and, so confronted, he might disprove forty-nine yet still be convicted of the fiftieth offense. *Crosslin* , 235 S.W. at 906. Thus, the election requirement seeks to prevent a situation that would embarrass the accused *163by leaving him in doubt as against which offense he will be called upon to defend. *Id.* ; *O'Neal* , 746 S.W.2d at 772. However, in the event that the State's proof and theory all point to a particular incident, a defendant may be put on notice which offense the State was relying upon, without an actual election. *O'Neal* , 746 S.W.2d at 772-73. In such cases, the defendant would not be embarrassed by being left in doubt as to which offense he would be called upon to defend. *Id.*

In this case, Appellant's defense was that nothing sexual happened between K.M. and himself, and K.M.'s outcry was the result of repeated questioning by his ex-wife. Of course, if the State had elected a particular offense, whether it was the undifferentiated incidents, the incident where oral was added, the incident in Tyler's room, or the incident at Appellant's father's home, Appellant could have sought to recall K.M. as a witness and focused a re-examination of K.M. on that particular instance. Perhaps he could have drawn out inconsistencies by repeated questioning. While any such inconsistencies might undermine K.M.'s credibility, said inconsistencies would not constitute a change in Appellant's defensive theory of the case that nothing sexual happened at all and that K.M.'s outcry was a fabrication. Furthermore, to what extent, if any, the election followed by a more extensive cross-examination of K.M. might undermine K.M.'s credibility would be highly speculative. Even if we felt the need to speculate as to this matter, we are restricted to do so based on the record before us, and there is nothing in the record concerning any of the offenses that would lead me to believe that a more extensive cross-examination on any particular offense would undermine K.M.'s credibility enough to create reasonable doubt as to that particular offense. For this reason and because of the nature of Appellant's defense, it was not prejudiced by the failure to require the State to elect. Unlike a case where a defendant, faced with evidence of multiple offenses, may be able to marshal an alibi for some of the offenses and justifications and affirmative defenses for other offenses, Appellant's defense here was a blanket denial of wrongdoing. It seems obvious that the defense would have been the same even if the State elected any of the four incidents. I believe Appellant was not denied an adequate opportunity to defend himself against the charged offense.

**V-Continuing Offense**

As Judge Cochran recognized in her concurring opinion in *Dixon* , our bedrock procedural protections are not designed for situations such as the case before us involving generic, undifferentiated, ongoing acts of sexual abuse of young children. *Dixon* , 201 S.W.3d at 737. Penal statutes, such as the aggravated sexual assault statute involved in this case, are intended to criminalize "one discrete criminal offense at one discrete moment in time." *Id.* She suggested that the Legislature enact a statute focusing upon a sexually abusive relationship that is marked by a pattern or course of conduct of various sexual acts. *Id.* The Legislature responded by enacting section 21.02 of the Penal Code, criminalizing continuous sexual abuse of a young child or children. Act of June 15, 2007, 80th Leg., R.S., ch. 593, § 1.17, 2007 Tex. Gen. Laws 1120, 1127 (current version at Tex. Penal Code Ann. § 21.02 (West 2011 & Supp. 2016)). The statute was designed for cases like this one, and if Appellant was charged under the statute, the issue involving election of offenses before the Court today would have been avoided.

With those thoughts, I join the majority opinion in this case.

1

Tex. Penal Code § 22.021(a)(1)(B)(iii), (a)(2)(B).

2

*Owings v. State* , 507 S.W.3d 294, 310 (Tex. App.-Houston [1st Dist.] 2016).

3

Because the court of appeals sustained Appellant's second issue regarding the trial court's failure to require an election, it did not address Appellant's first issue concerning whether the trial court erred by allowing the State to question him about the underlying details of his prior conviction for aggravated robbery. *Owings* , 507 S.W.3d at 310 n. 5.

4

*Owings* , 507 S.W.3d at 310.

5

*Id.* at 310.

6

*O'Neal v. State* , 746 S.W.2d 769, 771 (Tex. Crim. App. 1988) ; *Phillips v. State* , 193 S.W.3d 904, 910 (Tex. Crim. App. 2006) (reaffirming *O'Neal* ); *Dixon v. State* , 201 S.W.3d 731, 733-34 (Tex. Crim. App. 2006).

7

*Phillips* , 193 S.W.3d at 909 ("In reexamining *O'Neal* , we find no reason to deviate from our holding that a trial court errs by failing to have the State elect at the close of its evidence when properly requested by the defense.").

8

*Owings* , 507 S.W.3d at 304. Article 38.37 of the Code of Criminal Procedure, which permits the admission of extraneous offense evidence, does not restrict a defendant's right to have the State elect the incident for which it will seek a conviction. *Id.* at 300 (citing *Phillips* , 193 S.W.3d at 911-12 ). Moreover, the jury charge does not serve "as a *de facto* election" because it is given too late in the trial to afford a defendant the requisite notice to defend. *Id.* (citing *Phillips* , 193 S.W.3d at 912 ).

9

*Phillips* , 193 S.W.3d at 914.

10

Tex. R. App. Proc. 44.2(a).

11

*Phillips* , 193 S.W.3d at 910 (internal citations omitted); *see also**O'Neal* , 746 S.W.2d at 772-73 ("Where the State fails to elect at the resting of its case in chief, a defendant might find himself without notice as to which of a multitude of acts he might be called upon to defend.").

12

Tex. Code Crim. Proc. art. 38.37, §§ 1(1), 2(2) ; *Dixon* , 201 S.W.3d at 734-35.

13

*Dixon* , 201 S.W.3d at 734-35.

14

*Id.* at 732.

15

*Id.* at 735.

16

*Id.*

17

*Id.*

18

*See**id.* ("[S]he described the manner in which appellant sexually assaulted her and said that it occurred numerous times. Consequently, *all* of the incidents presented in the case were presented with equal specificity, ....").

19

*Owings* , 507 S.W.3d at 307.

20

*Phillips v. State* , 193 S.W.3d 904, 913 (Tex. Crim. App. 2006). In *Phillips* , the complainant testified that oral contact of her sexual organ and digital penetration of her sexual organ first occurred at the appellant's apartment and also occurred at a motel on a specific date. We held that the trial court's error in failing to require the State to elect was harmful constitutional error because the complainant had given more than one detailed account for each type of offense. *Id.* at 907, 914. Specifically, the purpose that was not satisfied was the one requiring jury unanimity. The danger was that six jurors could convict on the basis of one of the detailed incidents and six could convict on the basis of the other detailed incident. *Id.* at 913.

21

*See**Dixon* , 201 S.W.3d at 735-36 (finding it "obvious from this record" the incident that supported the jury's verdict, and also finding that "there is no remotely significant risk, under the facts of this case, that a jury would convict appellant without believing that he committed an offense at night.").

22

During closing argument, defense counsel suggested several reasons why K.M. would fabricate her accusation. First, he argued that K.M. felt pressured by Grammy to make up the story of sexual abuse because Grammy repeatedly asked K.M. if she was being abused. Defense counsel then argued that K.M. was acting out as a result of being exposed to domestic violence between her mother and her father and step-father. He suggested that K.M. was traumatized by moving around a lot as a child. He reminded the jurors that depression and bipolar disorder run in the family. Then defense counsel suggested that the separation of primary male figures in the home caused K.M. anxiety. All of these supposed traumatic events that occurred in K.M.'s past were presented as possible motives for K.M. to lie about being abused by Appellant.

23

*Cosio v. State* , 353 S.W.3d 766, 777-78 (Tex. Crim. App. 2011). Although in *Cosio* , we applied the jury charge error standard of review under *Almanza v. State* , 686 S.W.2d 157 (Tex. Crim. App. 1985), as opposed to the constitutional error standard of review under Texas Rule of Appellate Procedure 44.2(a), the considerations of notice and jury unanimity were still relevant to our harm analysis.

24

In *Arrington v. State* , "appellant denied that he had ever seen the [complainant] naked or that he had any inappropriate sexual contact with her." *Arrington v. State* , 451 S.W.3d 834, 842 (Tex. Crim. App. 2015). His defense was that the complainant's mother prompted the complainant to lie about the alleged sexual abuse. *Id.* at 842. Thus, the jury's verdict was a complete rejection of Appellant's defensive theory. *Id.* There was no risk that the jury's verdict was not unanimous.

1

The trial court also failed in this case to give a jury instruction that would have required the jury to agree to a particular incident upon which to convict. But Appellant neither objected to the jury charge on this account, nor complained of the omission on appeal. *Owings v. State* , 507 S.W.3d 294, 296 (Tex. App.-Houston [1st Dist.] 2016). Thus, *that* constitutional issue is not before us.

2

Every other incident the State has proved is then rendered essentially an "extraneous offense," subject to the circumscriptions and limiting instructions accorded by law.

3

This is not to say that a failure to give a jury instruction requiring unanimity would not constitute error of constitutional dimension. *See* note 1, *ante* ; *Cosio v. State* , 353 S.W.3d at 776.

1

Extraneous offense evidence is admissible for purposes other than proving character, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Tex. R. Evid. 404(b)(2). Additionally, in cases involving sexual abuse of a minor such as this one, evidence of other bad acts committed against the same child who is the victim of the alleged offense is admissible to show the defendant's state of mind, the relationship between the defendant and the child, and, in aggravated sexual assault cases such as the one before us today, to prove character. Tex. Code Crim. Proc. Ann. art. 38.37 §§ 1(b), 2(b) (West Supp. 2016).

2

I do not fault the court of appeals for finding that the "first incident" was a single, discrete instance. K.M.'s testimony about the general pattern was in response to the State's question:

> Q. Okay. So, we talked about the abuse. I want to think back right now in your mind of *a specific incident that you remember the best* ; and we'll start there, okay? Okay. Where were you when that happened?

Rep. R. vol. 4, 18 (emphasis added).