stating that "[o]ur law allows only one offense to be charged in each paragraph of an indictment, information, or complaint. Here, the State, having chosen to plead only one paragraph, was required to elect one incident on which to rely. This requirement is not only essential to giving a defendant the requisite notice of the charge against which to defend, it helps assure that the jury's verdict will be unanimous"
How later courts described this case
- stating that "[o]ur law allows only one offense to be charged in each paragraph of an indictment, information, or complaint. Here, the State, having chosen to plead only one paragraph, was required to elect one incident on which to rely. This requirement is not only essential to giving a defendant the requisite notice of the charge against which to defend, it helps assure that the jury's verdict will be unanimous"
- concluding there was error in failing to include unanimity instruction and noting that “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)”
- concluding there was error in failing to include a unanimity instruction and noting, “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)”
- finding that a defendant’s right to a unanimous verdict was violated where the jury was erroneously charged in the disjunctive that it could find the defendant guilty of either touching the victim’s breasts or her genitals, and remanding the matter to the court of appeals to conduct a harmless error analysis
Written by the judges who cited it.
Distinguished
Distinguished by Euleses Nejandro Davila v. State (2006)
) Francis is distinguishable.
Distinguished by Jefferson, Raymond v. State (2004)
the State that Francis is distinguishable from the instant case.
The opinion
JOHNSON, J.,
concurring.
We recently held that each instance of sexual assault is a separate crime and may be prosecuted in separate trials. Ex parte Goodbread, 967 S.W.2d 859, 861 (Tex.Crim. App.1998). In Goodbread, we cited as authority Vernon v. State, 841 S.W.2d 407, 410 (Tex.Crim.App.1992), a case in which we determined that it is inaccurate to characterize a defendant’s repeated acts of indecency with a child as a single continuing offense under Texas law. Goodbread, 967 S.W.2d at 861 . Following these precedents, it is clear that the two alleged acts of indecency with a child were not two different ways of committing a single of *128 fense, but were instead separate offenses from which the state should have been required to elect a single offense.
The State Prosecuting Attorney urges that error is waived because appellant failed to mount a pretrial challenge to the form and substance of the indictment. As noted above, our decisions in Goodbread and Vernon, supra, indicate that each act of indecency with a child is a separate offense. The indictment against appellant contained one count of indecency with a child, alleging two kinds of contact on the same date. The indictment was valid on its face; if both types of contact occurred at the same time, they would comprise a single act. The indictment was therefore not subject to a pretrial motion to quash. The proof offered at trial showed four separate acts on four different dates, with no allegation that both breasts and genitals were touched on a single occasion. The proof thus exposed a defect in the allegations as it, in conjunction with the indictment’s single count, either improperly treated the separate offenses as a single continuing offense or as two ways of committing a single offense and thus made the state’s pleadings duplicitous.
With these comments, I join the opinion of the Court.