### IN THE TENTH COURT OF APPEALS
No. 10
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- 00179
- CR No. 10
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- 00180
- CR
JOHN WAYNE WILLIAMS, SR. , Appellant v. THE STATE OF TEXAS , Appellee

From the 82nd District Court Falls County, Texas Trial Court No s . 10207 & 10206

MEMORANDUM OPINION
John Wayne Williams, Sr., was convicted of tw o offenses of aggravated sexual assault of a child , see T EX
. P ENAL C ODE § 22.021 (a)(1)(B)(ii) ,(2)(B) and § 22.021(a)(1)(B)( iii), (2)(B), respectively, and sentenced to life in prison for both convictions

. In the same two issues in both appe als , Williams contends the trial court erred in failing to grant Williams’s request s, before and after the State rested its case

- in

- chief , to require the State to elect which acts of abuse it would rely on for its convictions. Because the trial courtWilliams v. State Page 2 either did not err or Williams was not harmed by the error, the trial court’s judgments are affirmed.
B ACKGROUND Williams was charged with one act of aggravated sexual assault of a child by causing the penetration of the mouth of L.W., a child under 14 years of age , by the sexual organ of Williams (oral sex on Williams) (10

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- CR) and one act of aggravated sexual assault of a child by causing pene tration of the sexual organ of L.W., a child under 14 years of age, by Williams’s tongue (oral sex on L.W.) ( 10

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- CR)

. L.W. turned 8 years old on April 12 . By ear ly May, she made an outcry of sexual abuse to her school bus driver

. 1 In response to this outcry, L.W. was taken to the Waco Child Advocacy Center on May 10

. There, L.W. told a forensic interviewer, that Williams had licked L.W.’s vagina. Six days l ater, L.W. told an examining doctor that , in addition to Williams licking L.W. “a lot of times , ” Williams to l d L. W . to put his penis in her mouth “a lot of times ” and that L.W. complied with Williams’s instruction on more than one
occasion. L.W. told the doctor that the abuse happened when she was 8 years old, but did not know exactly when. L.W. also said that she thought the last time Williams “touched her middle spot” was in April, but was not sure

. By the time of the trial, L.W. was 12 years old. She testified th at Williams licked her vagina and made her put his penis in her mouth. When asked about who she may have talked to about what had happened to her, L.W. stated that because of the years that

1 The bus driver, although designated as an outcry witness, was not called to testify

.Williams v. State Page 3 had passed, she was unable to recall “all the dates and details

. ” L.W. stated she did not tell anyone about the “first time anything like this happened ” because she did not want her “mom to get worried way too much .” During the trial , Williams requested , on three separate occasions , an election by the State of the act for each indictment on which it was relying for a conviction

. Those requests were denied.
E LECTION OF O FFENSES In the same two issues for each appeal, Williams contends the trial court erred in failing to grant Willi ams an in

- trial election of offenses and in failing to grant Williams an election of offenses after all the parties had rested. 2 Generally, w hen 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, as is the case here, "the State must elect the act upon which it would rely for conviction." Owings v. State , 541 S.W.3d 144, 150 (Tex. Crim. App. 2017) , quoting O'Neal v. State , 746 S.W.2d 769, 771 (Tex. Crim. App. 1988)

. See Garcia v. State , 614 S.W.2d 749, 753 (Tex. Crim. App. 2019). Before the State rests, the trial court has discretion in directing the State to make an election. Garcia , 614 S.W.2d at 753; O'Neal , 746 S.W.2d at 771. See Porter v. State , 2 98 S.W.3d 694 (Tex. App.

— Waco 2009, pet. ref'd)

. But o nce 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. Owings , 541 S.W.3d at 150 ; O'Neal , 746 S.W.2d at 771

. See Phillips v. State , 193

2 Even after being notified that its briefs had not been filed and warned that if briefs were not filed the cases would be submitted without its briefs , the State did not file a brief in either appellate case

.Williams v. State Page 4 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). Election During Case
- in
- Chief Williams first complains that the trial court erred in denying his two reques t s for an election in both cases during the State’s case

- in

- chief. Williams first asked for an election after the completion of the testimony of the State’s first two witnesses, Dr. Soo Battle , a board

- certified pediatrician working at the Advocacy Center as a medical advisor and a child sexual abuse examiner , and Dr. William Lee Carter , a forensic psychologist . Battle spoke with L.W. about what had happened and physically examined
L.W. Carter did not see L.W. as a patient and did not testify about any of the acts L.W. said happened to her. The second time William asked for an election was after the completion of the testimony of K.W. and L.W. K .W. is L.W.’s cousin who heard a
conversation between two other c ousins. The substance of the conversation w as not made known to the jury

. We have said that to compel an election before the State rests , “ the State’s evidence must show a discrete, identifiable occurrence which fits within the a llegations of the indictment. ” Porter v. State , 298 S.W.3d 694, 696 (Tex. App.

— Waco 2009, pet. ref’d).

“ Generally, such showing will include a chronological component (e.g., the complainant may testify that the defendant assaulted him during the Thanksgiving holidays ).” Id

.

— 10
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- CR In reviewing the testimony prior to both election requests, we found no discrete identifiable occurrence regarding the act of Williams forcing L.W. to perform oral sex onWilliams v. State Page 5 Williams

. Dr. Battle and L.W. both testified that Williams made L.W. perform oral sex on him on more than one occasion

. There was no testimony isolat ing any particular instance of oral sex performed on Williams . Thus, we cannot say the trial court abused its discretion by not requir ing th e S tate to make an election at either time prior to resting
its case.

— 10
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- CR In reviewing the same testimony but regarding Williams’s act of performing oral
sex on L.W

. , a discrete identifiable occurrence was shown. L.W. recounted an instance when her brother, J.W. , walked into the garage, where all the acts of sexual abuse occurred, while Williams was performing an act of oral sex on L.W. She could see J.W. as he entered the garage and told Williams to stop because someone was coming

. Although there was no chronological component as generally required, we find this instance to be sufficiently isolated to require the State to make an election before resting. Accordingly, the trial court abused its discretion by failing to require the State to make an election as to this offense before the State rested. Election after State Rests Williams next complains that the trial court erred in denying his request for an election in both cases after the parties had rested. As we previously stated, once the State rests its case

- in

- chief, upon a timely request by the defense, the trial court must order the S tate to make an election. Owings v. State , 541 S.W.3d 144, 150 (Tex. Crim. App. 2017) ; O'Neal v. State , 746 S.W.2d 769, 771 (Tex. Crim. App. 1998. See Phillips v. State , 193 S.W.3d 904, 910 (Tex. Crim. App. 2006)Williams v. State Page 6 (reaffirming O'Neal ); Dixon v. State , 201 S.W.3d 731, 733

- 34 (Tex. Crim. App. 2006). But Williams did not request an election at the close of the State's case. Instead, Williams waited to move for an election until the close of all the evidence. The question, then, is whether Williams’s request for election was timely, as required by the rule as announced
in O'Neal

. See Phillips , 193 S.W.3d at 91 2; O'Neal , 746 S.W.2d at 771

. Certainly , if Williams had asked for an election at the close of the State's evidence, the trial court would have been obligated to require the State to elect at that time. But, b ecause he waited until the close of all the evidence , Williams was not entitled to an election at the c lose of the State's evidence. See Phillips , 193 S.W.3d at 91 2 . Nevertheless, he was still entitled to a unanimous verdict , and he preserved his right to a unanimous verdict by calling for an election at the close of all the evidence. Id

. Therefore, Williams 's request was timely insofar as he was entitled to a unanimous jury verdict, and the trial court had an obligation to require the State to elect at that point in time. Id

. H ARM A NALYSIS We must now decide whether the error harmed Williams, i.e . whether it contributed to Williams’s conviction or punishment. See T EX
. R. A PP
. P . 44 .2(a); Dixon v. State , 201 S.W.3d 731, 734 ( Tex. Crim. App. 2006) ; see also Phillips , 193 S.W.3d at 913

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. Harm is determined by analyzing the four purposes of the election rule: (1) to protect the accused from the introduction of extraneous offenses; (2) 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; (3) to ensure unanimous verdicts, that is, all of the jurors agreeing that one specificWilliams v. State Page 7 i ncident, which constituted the offense charged in the indictment, occurred; and (4) 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. Owings v. State , 541 S.W.3d 144, 150

- 51 (Tex. Crim. App. 2017)

. See Phillips , 193 S.W.3d at 910.
Because Williams is entitled to a unanimous verdict in case number 10

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- CR , we will join that case number in the harm analysis when we analyze the unanimous verdict purpose.

— 1 0
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- CV (oral sex on L.W. ) Protection from Extraneous Offenses Evidence of other crimes, wrongs, or acts committed by the defendant against the child victim is admissible for purposes of showing: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defenda nt and the child. T EX
. C ODE C RIM
. P ROC . art. 38.37. Because evidence about the other offenses was admissible, Williams was not entitled to protection from their introduction

as evidence of extraneous offenses involving L.W

. See id .; see also Dixon v. State , 201 S.W.3d 731, 734

- 35 (Tex. Crim. App. 2006 )

. Risk of Conviction
W e see no risk that the jury found Williams guilty of an offense other than the one for which he was charged that was not proven to its satisfaction beyond a reasonable doubt. As the Court in Dixon said, " [t] his case is not concerned with 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 ."Williams v. State Page 8 Dixon , 201 S.W.3d at 735. Here , L.W. was the only source of the evidence of the offense charged in 10

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- CR and committed by Williams , and she provided a sequence of events that occurred for the offense and stated that these incidents occurred “a lot of times” in the garage at Williams’s house when L.W. was 8 years old

. L.W. was 8 years old only for a short time before she made her outcry. She was either credible or she was not and the number of times that each offense occurred does not impact her credibility.
See i d

. Thus, w e cannot say that the jury convicted William s for any reason other than the offense was proved beyond a reasonable doubt. Notice of Particular Offense We also cannot say that Williams was deprived of adequate notice of, or an opportunity to defend against, the instances due to the trial court’s e rror. All of the incidents w ere presented with equal specificity

. With the exception that J.W. walked in

on one of the incidents of Williams performing oral sex on L.W., and that th ose incidents occurred in a few different l ocations in the garage , there was no substantive distinction between L.W.’s account of each instance

. See Dixon , 201 S.W.3d at 73 6; Jackson v. State , 2008 Tex. App. Lexis 6715 *17 (Tex. App.

— Waco, Sept. 3, 2008, pet. ref’d) (not designated for publication)

. Further, Williams’s defensive strategy was to attack the credibility of the State’s witnesses, especially L.W. , and question the State’s motives in the presentation of its case and the witness’s motives for testifying. Thus, we are not c onvinced that if the trial court had put the State to its election at the appropriate time , Williams’s defensive strategy would have been meaningfully different. See Garcia v. State , 614 S.W.3d 749, 758

- 59 (Tex. Crim. App. 2019).Williams v. State Page 9 — Both Appellate Cases
Unanimous Verdict Likewise, we are not convinced the trial court’s failure to require an election by the State result ed in a non

- unanimous verdict. There is no basis in the record for the jury to believe that one incident occurred and another did not. Thus, it is unlikely there was
any danger that some jurors might have believed that one incident occurred and another or others did not. Further, alth ough t here were two notes sent out by the jurors , neither indicat ed the jury was not unanimous about which incident was the charged offense. We find, therefore, that the jurors would not have convicted Williams w ithout unanimously believing that he commit ted the offenses charged and described by L.W. Thu s, we are satisfied that, despite the trial court's failure to require an election by the State, there is no significant risk of a non

- unanimous verdict for either charge of aggravated sexual assault

. See Owings v. State , 541 S.W.3d 144, 152

- 53 (Tex. Crim. App. 2017)

. Conclusion Based on our review of the record, we find the trial court’s failure to require the State to make an election did not contribute to Williams’s conviction or punishment. See
T EX
. R. A PP
. P

. 44.2(a) . Thus, Williams was not harmed by the trial court’s error, and his issues are overruled.
C ONCLUSION Having overruled Williams’s issues in each appeal, we affirm the trial court’s judgments.
TOM GRAY Chief JusticeWilliams v. State Page 10 Before Chief Justice Gray, Justice Johnson, * and Justice Smith *( Justice Johnson concurs only in the judgment

. ) Affirmed Opinion delivered a nd filed April 2 5 , 2024 Do not publish [CRPM]