Joseph Clayton FRANCIS, Appellant, v. The STATE of Texas, 36 S.W.3d 121

OPINION ON STATE’S MOTION FOR REHEARING HOLLAND, J., delivered the opinion of the Court on rehearing in which MEYERS, MANSFIELD, PRICE, WOMACK and JOHNSON, JJ„ join. Following our opinion on original submission, we granted the State’s Motion for Rehearing. We withdraw our prior opinions in this case and enter the following opinion of the Court. Appellant was charged- with a single count of indecency with a child. The State introduced evidence of four acts of indecency during its case-in-chief, but elected to proceed on only two of those acts.

Throughout the trial, appellant asked the trial court to require the State to elect between the two different acts of indecency, but the trial court denied these requests. The trial court also denied appellant’s requested charge that would have required the State to prove that appellant committed both alleged acts of indecency. Appellant was convicted of one count of indecency with a child. The court of appeals affirmed the conviction. See Francis v. State, No. 2-97-068-CR (Tex.App. — Fort Worth April 16, 1998) (not designated for publication). Relying on Kitchens v.

State, 823 S.W.2d 256 (Tex.Crim.App.1991), it concluded that the jury charge merely included different means of committing the charged offense of indecency with a ehild-not separate acts of indecency. See id. We granted appellant’s petition for discretionary review to consider whether “the court of appeals erred in holding that the charge submitted to the jury allowing a conviction on less than an unanimous verdict was not error.” We reverse and remand. Facts Appellant was charged with one count of indecency with a child in a single paragraph indictment.

The State presented evidence of four distinct acts of the alleged indecency with a child. Each of these acts occurred at a different time and date, with two acts involving an improper touching of the victim’s breasts and two acts involving an improper touching of the victim’s genitals. At the close of the State’s evidence, appellant requested that the trial court require the State to elect between the four acts. The State elected to pursue a conviction on two of the incidents, one involving the touching of the victim’s breasts and one involving the touching of the victim’s genitals.

Appellant objected, arguing that the general one-paragraph indictment limited the State to prosecuting only one act of sexual indecency. If the State was not limited to one act, appellant asserted that the jury could come to a non-unanimous verdict, with some jurors believing beyond a reasonable doubt that appellant touched the victim’s breasts and others believing that he touched the victim’s genitals. The trial court overruled appellant’s objections.

When the trial court asked the parties for any objections to the jury charge, appellant first reiterated his request that the State be required to elect between the two acts of indecency. The trial court again denied that request.

In response to that ruling, Appellant stated, In light of the Court’s ruling that there will not be an election, we would object to the language that says “engage in sexual contact by touching the breast or genitals of [victim].” We would object to using the term “or” and request that the charge be read “breast and genitals of [victim].” The court overruled the objection, allowing a conviction on a finding that appellant did “engage in sexual contact by touching the breast or genitals of victim.” (emphasis added). Appellant was found guilty and sentenced to five years and a $5000 fine, probated.

Analysis In addressing appellant’s point of error, it is necessary to first determine whether charge error, if any, was preserved by appellant’s objection and request as stated above.

Article 36.15 of the Texas Code of Criminal Procedure states, The defendant may, by a special requested instruction, call the trial court’s attention to error in the charge, as well as omissions therefrom, and no other exception or objection to the comt’s charge shall be necessary to preserve any error reflected by any special requested instruction which the trial court refuses. Tex.Code CRIm.PROcAnn. art. 36.15 (emphasis added). In Stone v. State, this Court applied

Article 36.15. The defendant in Stone requested a particular instruction in the charge on the issue of probable cause to stop a vehicle pursuant to

Article 38.23 of the Code of Criminal Procedure. 703 S.W.2d 652, 654 (Tex. Crim.App.1986). The Court first noted that the defendant’s requested charge instruction was incorrect — it misstated the law and constituted an impermissible comment on the weight of the evidence. See id. at 655. But the Court held that the requested charge need not be correct — it must only be “sufficient to call the trial court’s attention to the omission in the court’s charge.” Id.

Since the trial court in Stone understood that appellant was objecting to the omission of an instruction regarding the officer’s right to stop a vehicle, it was sufficiently “apprised of appellant’s objection to omissions in the charge.” Id.; see also 43 Dix and Dawson, Texas PRACTICE: CRiminal PRactice and PROCEDURE § 42.104 (1995). While Stone dealt with a complete omission of an instruction from the charge, the same concept applies to errors in the charge. See TexCode CRIm.Proc.Ann. art. 36.15.

In the instant case, appellant requested that the charge be changed to include an “and” instead of an “or.” This request would have created an erroneous charge. Appellant, however, had previously argued the effect of the conjunctive charge on the jury verdict.

Before his objection to the charge, appellant asserted, Judge, we would still urge that [the State] be required to elect between the two manners of committing the offense between touching breasts .or touching the genitals because the way the indictment is set out in a single court single paragraph, it would authorize the jury to essentially have a non-unanimous verdict if some voted-believed beyond a reasonable doubt he touched breasts and another group believed beyond a reasonable doubt he touched genitals.

Considering appellant’s objection to the charge, his repeated attempts to require the State to elect, and the unique nature of the indictment and the incidents alleged in this case, appellant’s objection to the jury charge was sufficient to apprise the trial judge of the potential charge error. See Tex.Code CRIM.PROc.Ann. art. 36.15; see also Chapman, 921 S.W.2d 694 (Tex.Crim. App.1996); Stone, 703 S.W.2d at 655. Therefore, appellant properly preserved the charge error, if any, for appellate review.

Next, we address appellant’s complaint that the jury charge erroneously allowed a conviction on less than an unanimous verdict. Contrary to the court of appeals’s and the State’s assertions, Kitchens is inapplicable to the instant case. In Kitchens, the defendant was charged with capital murder and sentenced to death. On appeal, he complained that the trial court erred in submitting alternative theories of committing capital murder in a single application paragraph in the charge.

He argued that the verdict was not unanimous since six members of the jury may have found him guilty of murder in the course of sexual assault, while the other six members of the jury may have found him guilty of murder in the course of robbery. See id. at 257. The Court stated that “[i]t is appropriate where the alternate theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted.” Id. at 258.

Unlike the charge in Kitchens, however, alternate theories of committing the same offense were not submitted to the jury in the instant. case. Rather, two separate offenses were submitted to the jury in the disjunctive. The relevant portion of the charge read: [I]f you find from the evidence beyond a reasonable doubt that on or about the 1st day of November, 1992, in Tarrant County, Texas, the Defendant, JOSEPH CLAYTON FRANCIS, did ... engage in sexual contact by touching the breast or genitals of.... (emphasis added). The State introduced evidence of four separate incidents.

In two different incidents, the appellant touched the victim’s breasts. In two separate occasions, the appellant touched the victim’s genitals. There was never a single incident alleged in which the appellant touched both the breasts and the genitals of the victim. When appellant requested that the State be asked to elect, the State proceeded on the incident in which the appellant touched the victim’s breast and the second incident in which the appellant touched the victim’s genitals. These incidents constitute two separate offenses. See Vernon v.

State, 841 S.W.2d 407 (Tex.Crim.App.1992) (stating that “those who commit multiple discrete assaults against the same victim are liable for separate prosecution and punishment for every instance of such criminal conduct.”). Therefore, Kitchens, which considered one offense with varying theories of commission, is distinguishable from this case. The United States Supreme Court’s holding in Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), also does not control the instant case. Schad examined a similar issue to the one presented in Kitchens.

The plurality concluded that a conviction under a jury instruction, which did not require agreement on whether the defendant was guilty of felony murder or premeditated murder, was not unconstitutional. See id. at 627, 111 S.Ct. 2491. Portions of the Schad opinion lend guidance, however, in solving appellant’s issue. Justice Scalia stated in his concurrence, As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission.

That rule is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict. When a woman’s charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her (and caused the fire accidently in his hasty escape), while six others believe he left her unconscious and set fire to kill her.

While that seems perfectly obvious, it is also true as the plurality points out, that one can conceive of novel “umbrella” crimes (a felony consisting of either robbery or a failure to file a tax return) where permitting a 6 to 6 verdict would seem contrary to due process. Id. at 649-50, 111 S.Ct. 2491 (Scalia, J., concurring) (citations omitted). Justice Scalia further observed that “[w]e would not permit ... an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday, despite the ‘moral equivalence’ of those two acts.” Id. at 651, 111 S.Ct. 2491 (Scalia, J., concurring).

The plurality in Schad also discussed the “umbrella” crimes stating, “nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of ‘Crime’ so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction.” Id. at 633, 111 S.Ct. 2491. Relying on the preceding language, the Fifth Circuit distinguished Schad from the issue raised in United States v. Holley, 942 F.2d 916 (5th Cir.1991).

In Holley, the defendant was charged with two counts of perjury, and each count alleged multiple statements. At trial, the defendant objected to the jury instructions because the court failed to instruct the jury that it must be unanimous as to one particular statement in each count to find the defendant guilty. His objection was overruled. See id. at 920-22. The Fifth Circuit first examined the importance of an unanimous jury verdict. An unanimous jury verdict ensures that the jury agrees on the factual elements underlying an offense — it is more than mere agreement on a violation of a statute.

See id. at 925 (citing McKoy v. North Carolina, 494 U.S. 433,110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (Blackmun, J., concurring)). The unanimity requirement is undercut when a jury risks convicting the defendant on different acts, instead of agreeing on the same act for a conviction. See id. Looking at the Schad opinion, the Holley court noted that the two cases entertained different factual scenarios. In Schad, one single killing occurred. But in Holley, a single count encompassed two or more separate offenses.

Because the jury instruction did not require jurors to agree on the falsity of one particular statement, the court concluded that “there was a reasonable possibility that the jury was not unanimous with respect to at least one statement in each count.” Id. at 929. Applying the Holley reasoning to the instant case, the jury charge given in appellant’s case created the possibility of a non-unanimous jury verdict. The breast-touching and the genital-touching were two different offenses, and therefore, should not have been charged in the disjunctive.

By doing so, it is possible that six members of the jury convicted appellant on the breast-touching offense (while the other six believed he was innocent of the breast-touching) and six members convicted appellant on the genital-touching offense (while the other six believed he was innocent of the genital-touching). Appellant was entitled to an unanimous jury verdict. See Brown v. State, 508 S.W.2d 91 (Tex.Crim.App.1974). Hence, the trial court erred by charging appellant in the disjunctive. Conclusion The jury charge submitted at appellant’s trial allowed a conviction on less than an unanimous jury verdict.

Therefore, appellant’s ground for review is sustained. The judgment of the court of appeals is reversed, and this cause is remanded to the court of appeals for a harm analysis. See Almanza v. State, 686 S.W.2d 157 (Tex. Crim.App.1984). WOMACK, J., concurs with opinion joined by MANSFIELD and JOHNSON, JJ., JOHNSON, J., concurs with opinion. McCORMICK, P.J., KELLER, and KEASLER, JJ., dissent without opinion. . Our state requirements for an unanimous verdict are not identical to the requirements under federal law.

The opinions of Schad and Holley, however, are helpful in illustrating the error in the jury charge at appellant’s trial.