COURT OF APPEALS FOR THE

COURT OF APPEALS FOR THE

ELEVENTH DISTRICT OF TEXAS

_________________________

CASE NO.

11-03-00282-CR

_________________________

BRUCE DOUGLAS YYY

Defendant-Appellant

STATE OF TEXAS

Plaintiff-Appellee.

________________________________

APPEAL FROM THE 90th DISTRICT COURT

OF STEPHENS COUNTY, TEXAS

________________________________

BRIEF OF DEFENDANT-APPELLANT

_________________________________

ORAL ARGUMENT F. CLINTON BRODEN

REQUESTED Tex. Bar No. 24001495

Broden & Mickelsen

2707 Hibernia

Dallas, Texas 75204

(214) 720-9552

(214) 720-9527(facsimile)

Attorney for Defendant-Appellant

Bruce Douglas YYY
IDENTITY OF PARTIES AND COUNSEL

Plaintiff-Appellee: State of Texas

Trial Counsel: Stephen E. Bristow

Stephens County District Attorney’s Office

516 4th Street

Graham, Texas 76540

Appellate Counsel: Stephens County District Attorney’s Office

516 4th Street

Graham, Texas 76540

Defendant-Appellant: Bruce Douglas YYY

Trial Counsel: James Bruce Harris

1211 Bluff

Wichita Falls, Texas 76301

Appellate Counsel: F. Clinton Broden

Broden & Mickelsen

2707 Hibernia

Dallas, Texas 75204
TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL i

TABLE OF CONTENTS ii

INDEX OF AUTHORITIES iii

STATEMENT OF THE CASE 1

ISSUE PRESENTED 2

STATEMENT OF FACTS 3

SUMMARY OF THE ARGUMENT 6

ARGUMENT 7

PRAYER 11

CERTIFICATE OF SERVICE 12

INDEX OF AUTHORITIES

Page

Cases

Bates v. State, 305 S.W.2d 366 (Tex. Crim. App. 1957) ... 8

Crawford v. State, 696 S.W.2d 903 (Tex. Crim. App. 1985) 8

Crosslin v. State, 235 S.W. 905 (Tex. Crim. App. 1921) ... 8

Gutierrez v. State, 8 S.W.3d 739 (Tex. App.--Austin 1999) 8

Monlandes v. State, 571 S.W.2d 3 (Tex. Crim. App. 1978) 8

Phillips v. State, 2004 Tex. App. LEXIS 1819 (Tex. App.--Houston[14th],

Feb. 26, 2004) 8-10

Scoggan v. State, 799 S.W.2d 679 (Tex. Crim. App. 1980) 8

YYY v. State, 3 S.W.2d 223 (Tex. App.--Waco 1999) 10

Statues

Tex. Code Crim. P. 38.37 7

Tex. R. Evid. 404(b) 7

STATEMENT OF THE CASE

On December 19, 2002, Bruce Douglas YYY was charged by indictment with two counts of aggravated sexual assault. See C.R. at 3.[1] Count 1 charged him with aggravated sexual assault against Vicki Villa by causing her to perform oral sex on him and Count 2 charged him with aggravated sexual assault against Abby Villa by digitally penetrating her vagina. Id.

A trial was held on August 25, 2003-August 26, 2003. The jury found Mr. YYY guilty on both counts on August 26, 2003. See C.R. at IV:58-61. That same day, the jury sentenced Mr. YYY to thirty-five years imprisonment and a $10,000 fine on each count. Id. at V:41-42. The Court ordered that imprisonment sentences be served consecutively. Id. at V:44-45.

On September 11, 2003, Mr. Harris filed a timely Notice of Appeal from his conviction and sentence. See C.R. at 130-31.
ISSUE PRESENTED

Where the defendant is charged with sexual assault and the evidence indicates that there were multiple acts of sexual assault committed against the same victim, is the state, upon a motion by the defendant, required to elect the particular assault on which it will rely upon in proving the allegation contained in the indictment after resting its case?
STATEMENT OF FACTS

Abby Villa was born on September 18, 1990 and not married. See R.R. at IV:11, 20. She, along with her sister, Vicki, her mother, her step father, and Mr. YYY took a trip to Florida in Mr. YYY’s truck when school was not in session. Id. at IV:14-16, 23. During the trip, Abby alleged that Mr. YYY put “his finger in [her] private” and committed other sexual acts against her. Id. at IV:16-17.[2] Abby also alleged that she saw Mr. YYY “do these things” to her sister. Id. at IV:18. Abby testified that Mr. YYY also sexually assaulted her at her family’s home in Breckenridge, Texas including putting his finger inside of her. Id. at IV:18-19.

Vicki Villa was born on March 11, 1992 and has never been married. Id. at IV:26-27. She testified that, during the family’s trip to Florida in Mr. YYY’s truck, he put his mouth between her legs and his finger in her vagina. Id. at IV:32-33. He had also assaulted her before the trip to Florida at her Breckenridge, Texas house by putting “his thing” in her mouth and putting his hand and mouth between her legs. Id. at IV:33-34. Vicki testified that Mr. YYY “did this a lot while [she] was at the house” in Breckenridge. Id. at IV:35. James Reeves, a Stephens County Sheriff’s Department employee, testified regarding a statement taken from Mr. YYY upon his arrest. Id. at III:35-36. The statement was introduced into evidence as State’s Exhibit 4. Id. at III:48. In the statement, made on October 14, 2002, Mr. YYY admitted sexually assaulting Abby six to eight weeks earlier including the touching inside and outside of her vagina. See State’s Exhibit 4. Three to four weeks prior to the statement, Mr. YYY took Abby, Vicki, their mother and stepfather to Orlando, Florida in his truck. Id. During the eleven day trip, Mr. YYY admitted to touching inside and outside Abby’s vagina four or five times. Id. After returning to the girls’ house, Mr. YYY and Abby were “together” about three times. Id. Three or four times, Mr. YYY and the girls played “I Dare You” and this resulted in several sexual encounters including times when Mr. YYY kissed both girls on their vaginas and the girls dared each other to suck on his penis. Id. The last encounter Mr. YYY had was with Abby about ten days prior to the giving of his statement. Id.[3]

Adam Babilon, also employed by the Stephens County Sheriff Department, testified that the offense date alleged in the indictment, September 22, 2002, was selected because Abby and Vicki were adamant that this date was one of the dates on which they were assaulted by Mr. YYY. Id. at III:13, 29.
SUMMARY OF THE ARGUMENT

The law in Texas has long been that when evidence shows two or more acts of intercourse, each of which is an offense for which a defendant may be convicted and the indictment charges only one offense, it is error for a trial court not to require the state to elect which act it will rely upon to secure a conviction. Here, there was evidence adduced that Mr. YYY penetrated the mouth of Vicki Villa “a lot” and digitally penetrated Abby Villa on several occasions but there was no testimony regarding specific incidents. Therefore, it was error for the District Court to deny Mr. YYY’s motion that the state be required to elect which alleged sexual assaults of Vicki Villa and Abby Villa it would rely upon at least by the close of the evidence, in order to prove the allegations set forth in the indictment.
ARGUMENT

In both a written motion filed prior to trial and orally prior to opening statements in this case, Mr. YYY moved the Court to require the state to elect, at least by the close of the evidence, which alleged sexual assaults against Vicki Villa and Abby Villa it would rely upon in order to prove the allegations set forth in the indictment. See C.R. at 85-87 (“The Defendant moves the Court, at the close of the evidence, to require the State to elect the particular date an incident that it relies upon in seeking the conviction of the Defendant.”); R.R. at II:4-7. The District Court denied the motion. See CR. at 84; R.R. at II:7.

At trial, Abby testified that Mr. YYY digitally penetrated her vagina on at least two occasions. Id. at IV:16-19. Vicki testified that Mr. YYY assaulted her “a lot” while they were in Breckenridge and the assaults included making her put “his thing” in her mouth. Id. at IV:33-35. The state also introduced Mr. YYY’s confession in which he admitted numerous instances of digital penetration of the girls and causing them to perform oral sex on him. See State’s Exhibit 4. The state contended that these multiple incidents of sexual assault on the girls were admissible under Tex. Code Crim. P. 38.37 and Tex. R. Evid. 404(b). See C.R. at III:52-53.

The law in Texas cannot be more clear. In a case “where more than one act of intercourse is shown, upon motion of the accused, the state should be required to elect as to which act it will rely on for a conviction.” Bates v. State, 305 S.W.2d 366, 368 (Tex. Crim. App. 1957) (citations omitted). See also, Scoggan v. State, 799 S.W.2d 679, 680 (Tex. Crim. App. 1980) (“When the evidence shows two or more acts of intercourse, each of which is an offense for which the defendant may be convicted, and the indictment charges only one offense, the State is required to elect which act it will rely upon to secure a conviction, provided the accused makes a motion for election.”); Crawford v. State, 696 S.W.2d 903, 905-06 (Tex. Crim. App. 1985) (same). Failure to make such an election constitutes error. See, e.g., Crosslin v. State, 235 S.W. 905 (Tex. Crim. App. 1921).

This error is a constitutional violation. Phillips v. State, 2004 Tex. App. LEXIS 1819, *12 (Tex. App.--Houston[14th], Feb. 26, 2004) (attached hereto as Attachment A). See also, Gutierrez v. State, 8 S.W.3d 739, 747-48 (Tex. App.--Austin 1999). First, a failure to elect leaves the door wide open for the possibility of a non-unanimous verdict and a defendant has a constitutional right to a unanimous verdict. See, Phillips, 2004 Tex. App. LEXIS at *15-16; Monlandes v. State, 571 S.W.2d 3 (Tex. Crim. App. 1978) (Texas Constitution gives a defendant a right to a unanimous verdict.). Second, a failure to elect results in a defendant not having adequate notice as to which charge he must defend against, thus constituting a clear infringement on a defendant’s constitutional rights to due process and effective assistance of counsel. See, Phillips, 2004 Tex. App. LEXIS at *15-16. Third, a failure to elect leads to the possibility that a “jury might tend to convict not because it found beyond a reasonable doubt that each of the offenses was committed, but because it was convinced of guilt because of the number of alleged incidents.” Id. Fourth, a failure to elect could impact a defendant’s right to claim his constitutional right against double jeopardy in any future, related prosecutions. Finally, it hampers appellate review of the sufficiency of evidence. Id. at *22 n.13.[4] Consequently, using a constitutional error standard of review, Mr. YYY’s conviction must be reversed unless there is no reasonable doubt whatsoever that the error did not contribute to the conviction. Id. at *19.

In this case, as noted above, there was evidence adduced that Mr. YYY penetrated the mouth of Vicki Villa “a lot” and digitally penetrated Abby Villa on several occasions. No specific dates were given by the girls, although Mr. YYY admitted to an approximate five to seven week period in which these multiple incidents occurred. Moreover, “[w]hen closing arguments were made, the State did not refer to any specific incidents or offenses. Not once did it point to a date or time...where even one offense occurred.” Id. at *22. In fact, the state, in its closing referred the jury to Mr. YYY’s statement so that it could “look at his statement that sets forth those things that he said he did and where he did those at.” See R.R. at IV:48.

In short, if the state’s evidence is to be believed, the various offenses occurred more than once and, because Mr. YYY’s Motion to Require Election was denied, “[t]his would have allowed the jury to convict because some of the jurors relied on one offense and others relied on another.” Phillips, 2004 Tex. App. LEXIS at *22. Clearly then, it cannot be said beyond any reasonable doubt that the District Court’s error did not contribute to the conviction in this case. Id.[5]
PRAYER

In accordance with foregoing argument, this Court should reverse the convictions on Count 1 and 2 and order a new trial.

Respectfully submitted,

________________________________ F. CLINTON BRODEN

Tex. Bar No. 24001495

Broden & Mickelsen

2707 Hibernia

Dallas, Texas 75204

(214) 720-9552

(214) 720-9594 (facsimile)

Attorney for Appellant

Bruce Douglas YYY
CERTIFICATE OF SERVICE

I, F. Clinton Broden, do hereby certify that, on this 19th day of April, 2004, I caused a copy of the foregoing document to be served on the Stephens County District Attorney’s Office, 516 4th Street, Graham, Texas 76540.

F. Clinton Broden

[1]Citations to the Clerk’s Record are to C.R. at page number. Citations to the Reporter’s Record are to R.R. at volume number:page number.

[2]There is no indication whether the truck was outside of Stephens County at the time of the alleged assaults.

[3]Sheriff Reeves also received a letter from Mr. YYY postmarked October 16, 2002 that was introduced into evidence as State’s Exhibit 5. See C.R. at III:49-51. In that letter, Mr. YYY admitted to being involved with minors, but attempted to excuse his behavior. See State’s Exhibit 5.

[4]For example, in this case, if the jury was relying upon the alleged assaults that took place inside of Mr. YYY’s truck, there is no evidence to support the fact that the assaults took place in Stephens County.

[5]Mr. YYY notes that even if the Court concluded that the District Court’s error should be reviewed under a non-constitutional standard of review, when there is “uncertainty concerning which offense the State relied on for [a] conviction,” a district court’s failure to require election has more than a slight influence on the verdict and thus affects substantial rights. See YYY v. State, 3 S.W.2d 223, 227 (Tex. App.--Waco 1999) (State’s evidence pointed to “two particular incidents” for which the jury could have found defendant guilty and “innumerable other instances” which the victim described generally for which the jury could have found the defendant guilty.).