1. “Is the constitutional harm standard the proper test for harm when there was a mere delay in the election versus no election at all and the jury is charged on a specific incident?”
2. “How specific must the factual rendition of a single incident in the jury charge be to serve the purposes the election requirement?”
Garcia was charged with one act of aggravated sexual assault of his step-daughter. At trial, the State introduced evidence of two such assaults, one that occurred earlier in a bathroom and another that happened in August 1987 in a bedroom. The trial court erroneously denied the defense request (at the close of the State’s case-in-chief) to have the State elect which incident it was relying upon for conviction. But the judge indicated that the State would have to elect at the close of all the evidence. The jury charge’s application paragraph limited the jury to convicting Garcia for an aggravated sexual assault “inside a bathroom.” Although the application paragraph tracked the indictment date—“on or about August 16, 1987,” which was either the date of the bedroom incident or at least closer to it than the bathroom incident, the charge instructed the jury that the State was not bound by the “on or about” date.
On appeal, Garcia argued he was harmed by the State’s late election of incidents. The court of appeals held that there was no meaningful distinction in this case between a late election and no election. By submitting an “on or about” date in the jury charge corresponding to the bedroom incident and specifying the bathroom incident, the charge conflated the two incidents. The court of appeals performed a constitutional harm analysis and reversed.
The State agrees it should have elected at the close of its case-in-chief, but argues there still was an election in this case. The State contends that the charge’s application paragraph narrowed the jury’s consideration to a characteristic that described only one incident (the bathroom incident) and that this alleviated rather than exacerbated harm from the late election. The State also contends that a constitutional harm analysis should not apply to late election because many of the purposes for requiring an election were served by telling the jury in the charge to convict only for one specific offense. The only remaining purpose—notice—warrants a non-constitutional harm standard. In addition, the defense was consistent for all incidents. The State notes the absence of any established procedures for how to effectuate an election, and questions what would have been different at trial had the State elected earlier.