Ronnie MacK Barnard v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00355-CR
RONNIE MACK BARNARD, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 54th District Court
McLennan County, Texas
Trial Court No. 2013-631-C2, Honorable Matt Johnson, Presiding
April 8, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
A thirteen-count indictment accused appellant, Ronnie Mack Barnard, of
aggravated sexual assault of a child, indecency with a child by contact, and sexual
assault of a child. The State abandoned three of the counts and proceeded to trial on
the remaining ten. A jury found appellant guilty of each count. The range of
punishment was enhanced by two prior convictions. The jury assessed punishment at
life in prison on each count. The trial court imposed the sentences and ordered they run
consecutively. We will affirm.
Analysis
In his sole issue, appellant argues the trial court abused its discretion by failing to
sua sponte order the State to elect the specific acts it relied on for conviction.
This complaint was not raised in the trial court and is therefore not preserved for
our review. TEX. R. APP. P. 33.1(a)(1); see Tennyson v. State, No. 05-00-01194-CR,
2001 Tex. App. LEXIS 3442, at *3 (Tex. App.—Dallas May 25, 2001, no pet.) (not
designated for publication) (citing appellate rule 33.1(a) and stating “[b]ecause appellant
did not request an election after the State rested, we conclude appellant waived his right
to require an election at that time”). While appellant contends he may assert his
complaint for the first time on appeal because it arises from unobjected-to jury charge
error that caused him egregious harm, based on the following analysis we find the trial
court did not err. The egregious harm standard for unobjected-to jury charge error
applies only after the appellate court first finds error in the jury charge. Tolbert v. State,
306 S.W.3d 776, 779 (Tex. Crim. App. 2010) (citing Posey v. State, 966 S.W.2d 57, 61
(Tex. Crim. App. 1998)).
Moreover, even if properly preserved for our review appellant’s issue lacks any
merit. As a general rule, when the State’s evidence shows multiple instances of
conduct conforming to a single indictment allegation, the State must elect the instance
on which it will rely for conviction. Martinez v. State, 225 S.W.3d 550, 555 (Tex. Crim.
App. 2007); O'Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). Ordering an
election by the State “forces it to formally differentiate the specific evidence upon which
it will rely as proof of the charged offense from evidence of other offenses or misconduct
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it offers only in an evidentiary capacity.” Phillips v. State, 193 S.W.3d 904, 910 (Tex.
Crim. App. 2006). The election requirement also provides protection of such
fundamental rights of the defendant as notice and unanimity thus ensuring “both that the
defendant is aware of precisely which act he must defend himself against, and that the
jurors know precisely which act they must all agree he is guilty of in order to convict
him.” Id.
Thus, after the State rests its case-in-chief, provided the defendant makes a
timely request, the trial court must order the State to elect the act it relies on for
conviction. Phillips, 193 S.W.3d at 909; O'Neal, 746 S.W.2d at 771. The trial court has
no discretion to respond otherwise. Phillips, 193 S.W.3d at 909; O'Neal, 746 S.W.2d at
771. In such instances, the court’s failure to order an election is error. O’Neal, 746
S.W.2d at 772.
But the State is not obligated to make an election and error is not shown absent
the defendant’s timely motion for election. O’Neal, 746 S.W.2d at 771 n.3; Crawford v.
State, 696 S.W.2d 903, 906 (Tex. Crim. App. 1985) (citing Bates v. State, 165 Tex.
Crim. 140, 305 S.W.2d 366, 368 (1957)) (on showing of more than one act of
intercourse, on the defendant’s motion, the State must elect and failure to so order is
error); Jiminez v. State, No. 07-07-00389-CR, 2009 Tex. App. LEXIS 7555, at *3 n.3
(Tex. App.—Amarillo Sept. 29, 2009, pet. refused) (mem. op., not designated for
publication) (noting absent a motion by the defendant to require an election, the State is
not required to make an election); Molina v. State, No. 05-05-01599-CR, 2006 Tex. App.
LEXIS 9670, at *2-3 (Tex. App.—Dallas Nov. 8, 2006, pet. refused) (not designated for
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publication) (appellant did not request an election and appellate court found no authority
suggesting the trial court should have ordered an election on its own motion).
In the present case, appellant made no motion requesting an election by the
State. We are not shown, nor do we find, any authority even intimating the trial court
was nevertheless obligated to order an election sua sponte. Such a requirement would
effectively make ordering an election a ministerial task. Importantly, it would deny the
defendant a significant strategic option1 and allow a disjointed error-preservation
procedure.2 Appellant’s reliance on O’Neal is misplaced. The opinion does not support
the notion that a trial court has discretion to order an election sua sponte. Rather, the
O’Neal court stated, “Once the State rests its case in chief, in the face of a timely
request by the defendant, the trial court must order the State to make its election.
Failure to do so constitutes error.” 746 S.W.2d at 772 (emphasis supplied); see id. at
771 n.3 (“[A]ppellant preserved error by his motion to require election. Absent such a
motion by the defendant, the State is not required to make an election”).
We find that even had appellant preserved his complaint, the trial court had no
obligation to sua sponte order an election.
1
See Cosio v. State, 353 S.W.3d 766, 775 (Tex. Crim. App. 2011) (“A defendant
may choose not to elect so that the State is jeopardy-barred from prosecuting on any of
the offenses that were in evidence. Punishment would then also be limited to the
charged offense only, and, given the jeopardy bar, there is no possibility that the
defendant would receive an additional stacked sentence, based on any of the offenses
in evidence, down the line” (footnote omitted)).
2
A defendant would necessarily have to object on the record pointing out to the
trial court, in a timely manner, its failure to sua sponte order an election. See TEX. R.
APP. P. 33.1(a)(1).
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Conclusion
Appellant’s issue is overruled and the judgments of the trial court are affirmed.
James T. Campbell
Justice
Do not publish.
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