Dixon v. State (2006)
In Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006), the victim was six years old at the time of the abuse and seven years old at the time of trial. Id. at 731.
She testified that her uncle assaulted her 100 times. One time occurred during the day and the rest at night. She did not otherwise distinguish between the incidents but described each one as involving the same conduct. Id. at 731-32.
The defendant unsuccessfully requested that the State elect upon which incident it would rely.
The court of appeals held this was error because, in part, it deprived the defendant of a unanimous verdict. Dixon v. State, 171 S.W.3d 432, 436 (Tex. App.--Houston 14th Dist. 2005, no pet.).
The Court of Criminal Appeals disagreed.
The court noted that the case did not present allegations of different activities with evidence from different sources.
The incriminating evidence came from one source and involved one sequence of events. The court concluded that the victim was either credible or she was not. Dixon, 201 S.W.3d at 735.
In Dixon v. State, the victim did not testify about one distinct, detailed incident, but "described the manner in which appellant sexually assaulted her and said that it occurred numerous times." Dixon, 201 S.W.3d at 734.
Specifically, the victim "related a sequence of events that occurred every time appellant sexually assaulted her." Id. at 732.
Dixon would undress, remove the victim's underwear, touch her "private parts" with his hand, and touch her "private parts" with his "private parts." Id. This occurred one hundred times and, with one exception, always occurred at night. Id.
The victim provided no other details. Id. Thus, "all of the incidents presented in the case were presented with equal specificity, and, except for the fact that one incident occurred during the day, none of the incidents were distinguished in any manner from each other." Id. at 734.
The Court of Criminal Appeals found "beyond a reasonable doubt that the error in failing to require an election did not contribute to appellant's conviction or punishment." Id. at 736.
The court of appeals had concluded that the trial court erred by denying the defendant's motion for the State to elect the specific incident it relied on to convict, and the issue before the court of criminal appeals was the proper harm analysis. Id. at 733.
In a concurring opinion, one of the judges warned that "we are headed for a train wreck in Texas law because our bedrock procedural protections cannot adapt to the common factual scenario of an ongoing crime involving an abusive sexual relationship of a child under current penal provisions." 201 S.W.3d 731, 737 (Tex. Crim. App. 2006) (Cochran, J., concurring).
The judge suggested that "a new penal statute that focuses upon a continuing course of conduct crime--a sexually abusive relationship that is marked by a pattern or course of conduct of various sexual acts" might "assist in preserving our bedrock criminal-procedure principles of double jeopardy, jury unanimity, due-process notice, grand-jury indictments, and election law." Id.