"The trial court's failure to require an election by the State should not have resulted in a reversal when the testimony regarding multiple incidents of abuse was admissible, the descriptions of each incident were essentially the same, the jury was charged on only one offense, and the appellant's defense was the same across the board."
Owings was charged with one count of aggravated sexual assault against his step-granddaughter. The evidence showed he did it four times over the course of three years. The trial court denied his request for an election, and he was convicted.
The court of appeals reversed. To determine harm it identified the four purposes behind the 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 proven 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 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. It held that the first purpose was satisfied because Tex. Code Crim. Proc. art. 38.37 makes the extraneous offenses considerable for all purposes. But it determined that the remaining three purposes were not served because the victim testified in detail to four distinct instances. It distinguished this case from Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006), in which the victim articulated one sequence of events and merely answered that this sequence happened one hundred times.
The State agrees with the court of appeals that Article 38.37 means Owings had no protection from extraneous offenses, but disagreed with its assessment of the remaining factors. Although the victim could describe details of a smaller number of discrete assaults, the case still boiled down to the repetition of a basic sequence of acts against the same victim and a blanket denial by Owings; it was all-or-nothing. Additionally, the unanimity instruction given in the charge was not "boilerplate" and the prosecutor's closing argument only mentioned details from the first incident the victim described. Finally, Owings was given pretrial notice of multiple allegations and his defense to each was apparently the same.