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Click here for the full text of this decision FACTS:Phillips was convicted of three counts of sexual assault. In a separate and unrelated case, Farr was convicted of two counts of sexual assault. In both cases, the state introduced multiple occurrences of each type of assault, and the trial court refused to require the state to elect, at the close of the state’s evidence, which occurrence it would use to convict. Phillips and Farr appealed their sexual assault convictions. The court of appeals found error in both cases, finding harm of a constitutional nature in two of Phillips’ convictions and both of Farr’s convictions. The court of appeals reversed those convictions. This court granted review of both cases on the state’s petitions for discretionary review and consolidated the cases. HOLDING:The court affirms the judgment of the court of appeals. The trial court erred in both cases in failing to require the state to elect, the court holds. The court finds no reason to deviate from its holding in O’Neal v. State, 746 S.W.2d 769 (Tex. Crim. App. 1988). A trial court errs by failing to have the state elect at the close of its evidence when properly requested by the defense. Requiring the state to elect at the close of its evidence 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 it offers only in an evidentiary capacity. This allows the trial judge to distinguish the evidence which the state is relying on to prove the particular act charged in the indictment from the evidence that the state has introduced for other relevant purposes. Thus, the trial court can instruct the jury on the proper use and weight to accord each type of evidence. Moreover, the election requirement protects fundamental rights such as notice and unanimity, insuring 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. The state relies on Steele v. State, 523 S.W.2d 685 (Tex. Crim. App. 1975), and McNutt v. State, 322 S.W.2d 622 (Tex. Crim. App. 1959), for the contention that the state was not required to elect because the facts adduced showed only one continuous course of conduct or transaction. However, Steele applies only where the evidence shows that several acts of intercourse were committed by one continuous act of force and threats that are “part and parcel of the same criminal transaction.” McNutt merely deals with the admissibility of extraneous offenses as evidence, not the election by the state as to which act of intercourse was being relied upon for conviction. The state argues that Texas Code of Criminal Procedure Article 38.37 allows the admission of evidence of other crimes, wrongs or acts for its bearing on relevant matters such as the state of mind of the defendant and the child, and the previous subsequent relationship between the defendant and the child. Had the appellants requested, the state urges, they would have been entitled to a contemporaneous limiting instruction at the time the extraneous offense testimony came into evidence. Because they could have obtained limiting instructions at the time of admission of the evidence, the state claims, the appellants’ requests for election were untimely. Article 38.37 does not restrict a defendant’s right to have the state elect the incident for which it will seek a conviction by forcing the defendant to request a limiting instruction when the evidence is admitted. The state argues that a valid jury charge serves as a de facto election. A jury charge alone, however, does not afford the defendant with the requisite notice that is provided by a valid and timely election by the state. Because Farr did not move for election until the close of all evidence, Farr was not entitled to an election at the close of the state’s evidence. However, Farr was still entitled to an unanimous verdict. He preserved his right to an unanimous verdict by calling for an election at the close of all the evidence. Therefore, Farr’s request was timely insofar as he was entitled to a unanimous jury verdict, and the trial court had an obligation to require the state to elect at that juncture. A similar danger arises when a multitude of incidents are presented to the jury and the state is not required to elect. Six jurors could convict on the basis of one incident and six could convict on another (or others). While each of the incidents presented may constitute the commission of a sexual abuse offense, the jury must agree on one distinct incident in order to render a unanimous verdict. Consideration of these incidents without an election jeopardizes the defendant’s right to a unanimous jury verdict as guaranteed by the Texas Constitution, even though the extraneous incidents may be admissible for other purposes under Article 38.37. An election is also required in order to provide adequate notice and an opportunity to defend. The deprivation of notice also implicates of fundamental constitutional principles. The court finds that the failure to require the state to elect upon timely request results in constitutional error, and that the court of appeals was indeed required to reverse the convictions unless it found beyond a reasonable doubt that the error did not contribute to the convictions or had but slight effect. OPINION:Price, J., delivered the opinion of the Court, in which Meyers, Johnson, Holcomb and Cochran, J.J., joined. Keller, P.J., filed a concurring opinion, in which Keasler and Hervey, J.J., joined. Womack, J., concurred. CONCURRENCE:Keller, P.J., filed a concurring opinion in which Keasler, and Hervey, JJ., joined. “In some portions of its opinion, the Court seems to assume that the”election requirement’ is a monolithic rule. In actuality, various considerations are implicated by evidence of multiple offenses conforming to the indictment. Rather than require trial courts to engage in exhaustive case-by-case determinations regarding when these considerations arise and what to do about them, we have imposed a requirement that the State elect on which offense it will proceed, and that it do so upon request at a period that will serve the implicated interests � at the end of the State’s case-in-chief, or if requested later, before submission to the jury (with a case-by-case approach used for requests occurring before the State rests). Even when an appellate court has determined that a trial court erred in denying a request to require the State to elect, matters such as when the request is made, whether the trial is to a jury, and which interests are implicated can impact error preservation and/or a harm analysis.”

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