Understanding the Prosecution’s Duty to “Elect” in Sex Crimes Cases

December 20th, 2019 by Tad Nelson in Sex Crime

When a person is charged with a sex crime, they have the right to understand the exact charge against them. But there are situations where prosecutors may allege one criminal sexual act in an indictment but present evidence of multiple acts at trial. The Texas Court of Criminal Appeals has said that in this situation, the state is required to “elect the act upon which it would rely for conviction.” The trial judge can actually order the prosecutor to make this election at any time before the state rests its case in chief. And if the state fails to make an election, the defense always has the right to demand it.

Court of Criminal Appeals Reinstates Harris County Man’s Conviction, Citing “Harmless Error” by Trial Judge

Although failure to make an election is considered a “constitutional error” that affects a defendant’s due process rights, Texas courts nevertheless will uphold convictions even when the election is not made. This happened just recently in the case of Garcia v. State, where the Court of Criminal Appeals reinstated a sex crimes conviction after it was previously reversed by an intermediate appellate court here in Houston.

Here is what took place. This case actually began more than 30 years ago. In 1987, the state indicted the defendant for aggravated sexual assault. Prosecutors alleged the defendant had “penetrated his child step-daughter’s female sexual organ with his own.” The defendant fled and was not caught until 2015.

At the defendant’s trial, the step-daughter testified about “multiple instances” of “indecent or sexually assaultive” acts. The defense made repeated motions to require the state elect which specific incident it wished for the jury to consider in reaching its verdict. The state argued it did not have to make its election until the “close of all evidence,” i.e., until both sides had rested their cases. The judge agreed, and the election was not made until the defense rested. The jury subsequently found the defendant guilty.

The Texas 14th District Court of Appeals held the judge and the prosecutor applied the law incorrectly. The defense was right in demanding an election before the state rested. More to the point, the judge’s error unfairly harmed the defendant, as there was a “significant risk that the jury rendered a mixed-and-matched or non-unanimous verdict” because it conflated the step-daughter’s testimony with respect to two different incidents. In effect, the defendant was forced to defend against two separate alleged assaults, even though the indictment only charged him with one.

In reversing the 14th District, however, the Court of Criminal Appeals said any error made by the trial judge was “harmless” and did not affect the jury’s verdict “beyond a reasonable doubt.” The judge’s instructions to the jury clearly explained which incident the jury was to focus on, and evidence from the second incident was admissible as proof of “extraneous offenses” against a “child victim” under Texas law. Furthermore, given the defendant issued a blanket denial that he ever sexually assaulted his step-daughter, the Court of Criminal Appeals said it was unlikely the defense’s trial strategy would have changed had the judge required the state to make its election at the proper time.

Speak with a Houston Sex Crimes Defense Lawyer Today

What appellate courts consider “harmless errors” often mean the difference between prison and freedom for individuals charged with sex crimes and sex offenses. That is why it is imperative to work with an experienced Houston criminal defense attorney who understands the law in this area and will make every effort to protect the rights of the accused. If you have been charged with a sexual offense and need legal assistance, contact the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City right away. Call 281-280-0100

 

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