IN THE

TENTH COURT OF APPEALS

No. 10-22-00179-CR

No. 10-22-00180-CR

JOHN WAYNE WILLIAMS, SR., 

Appellant

v.

THE STATE OF TEXAS, 

 Appellee

From the 82nd District Court

Falls County, Texas

Trial Court Nos. 10207 & 10206

MEMORANDUM OPINION

John Wayne Williams, Sr., was convicted of two offenses of aggravated sexual 

assault of a child, see TEX. PENAL CODE § 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 appeals, Williams contends the trial court erred in failing to grant 

Williams’s requests, 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 court 
Williams v. State Page 2

either did not err or Williams was not harmed by the error, the trial court’s judgments 

are affirmed.

BACKGROUND

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) (10-22-00179-CR) and one act of aggravated 

sexual assault of a child by causing penetration of the sexual organ of L.W., a child under 

14 years of age, by Williams’s tongue (oral sex on L.W.) (10-22-00180-CR).

L.W. turned 8 years old on April 12. By early 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 later, L.W. told an examining doctor that, in addition 

to Williams licking L.W. “a lot of times,” Williams told 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 that 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. 

ELECTION OF OFFENSES

In the same two issues for each appeal, Williams contends the trial court erred in 

failing to grant Williams an in-trial election of offenses and in failing to grant Williams 

an election of offenses after all the parties had rested.2

Generally, 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,

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, 

298 S.W.3d 694 (Tex. App.—Waco 2009, pet. ref'd). But 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. 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 requests 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 cousins. The substance of the conversation was 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 allegations 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.

—10-22-00179-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 on 
Williams 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 isolating any particular 

instance of oral sex performed on Williams. Thus, we cannot say the trial court abused 

its discretion by not requiring the State to make an election at either time prior to resting 

its case.

—10-22-00180-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 State 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 912; 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, 

because he waited until the close of all the evidence, Williams was not entitled to an 

election at the close of the State's evidence. See Phillips, 193 S.W.3d at 912. 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.

HARM ANALYSIS

We must now decide whether the error harmed Williams, i.e. whether it 

contributed to Williams’s conviction or punishment. See TEX. R. APP. 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 913-14. 

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 specific 
Williams v. State Page 7

incident, 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 10-22-00179-

CR, we will join that case number in the harm analysis when we analyze the unanimous 

verdict purpose. 

—10-22-00180-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 defendant 

and the child. TEX. CODE CRIM. PROC. 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

We 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 10-23-00180-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 id. Thus, we cannot say that the jury convicted Williams 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 error. All of the 

incidents were 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 those incidents 

occurred in a few different locations in the garage, there was no substantive distinction 

between L.W.’s account of each instance. See Dixon, 201 S.W.3d at 736; 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 convinced 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 resulted 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, although there were two notes sent out by the jurors, neither

indicated the jury was not unanimous about which incident was the charged offense. We 

find, therefore, that the jurors would not have convicted Williams without unanimously 

believing that he committed the offenses charged and described by L.W. Thus, 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

TEX. R. APP. P. 44.2(a). Thus, Williams was not harmed by the trial court’s error, and his 

issues are overruled.

CONCLUSION

Having overruled Williams’s issues in each appeal, we affirm the trial court’s 

judgments.

TOM GRAY

Chief Justice
Williams v. State Page 10

Before Chief Justice Gray, 

Justice Johnson,* and 

Justice Smith 

*(Justice Johnson concurs only in the judgment.)

Affirmed

Opinion delivered and filed April 25, 2024

Do not publish 

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