No. 13-04-040-CR.
December 7, 2006. DO NOT PUBLISH.
Dissenting Memorandum Opinion on Motion for En Banc Reconsideration.
Before the Court En Banc.
ERRLINDA CASTILLO, Justice
Dissenting Memorandum Opinion by Justice Castillo
This case is now before the Court on motion for en banc reconsideration of the panel opinion on original submission. See Tex. R. App. P. 41.2, 49.7; Alvarez v. State, No. 13-04-040-CR, 2006 Tex. App. LEXIS 4904 (Tex.App.-Corpus Christi June 6, 2006, no pet. h.). Appellant, David Alvarez, presents one issue, asserting that the panel majority incorrectly interpreted and decided his complaint with respect to jury charge error in his third issue on original submission. In a subsidiary point, Alvarez asserts that the panel "left unaddressed" his ineffective assistance of counsel claim. The panel concluded that "there was no error in the jury charge, and the charge did not allow for a non-unanimous jury verdict as to what offenses appellant committed." Alvarez, 2006 Tex. LEXIS 4904 at *9. Respectfully, I disagree. The en banc majority has denied the motion. I respectfully dissent. Background
The indictment and the charges alleged that the contact and indecent exposure offenses occurred on or about August 31, 1996. Eighteen years old at the time of trial, the victim testified that the incidents of sexual contact and indecent exposure occurred on the same day. She was eleven years old at the time. The first trial ended in a mistrial because of a hung jury. This appeal ensued after retrial. In his third issue on original submission, Alvarez complained of egregious error in the jury charge on grounds that the charges authorized convictions that were not unanimous with respect to (a) the contact allegation and (b) the exposure allegation. Alvarez argued that the evidence of multiple instances of indecency by contact and by exposure allowed the jury to convict for both offenses without the benefit of a unanimous verdict. He further argued that the State must, but did not, elect which separate act it chose to prosecute. In support of his argument before the en banc Court as he did before the panel, Alvarez advances the rationale and decisions in Almanza and Phillips (before and after the Court of Criminal Appeals' decision). See Almanza v. State, 686 S.W.2d 157, 171-74 (Tex.Crim.App. 1985) (holding that, according to article 36.19 of the code of criminal procedure, a misdirection of the law by the trial court to a jury does not automatically warrant reversal of the trial court's verdict, but rather is subject to a harm analysis); Phillips v. State, 193 S.W.3d 904, 910 (Tex.Crim.App. 2006) (holding that a trial court errs by failing to have the State, at the close of its evidence when properly requested by the defense, give de facto notice to the appellant as to which act the State would rely upon for conviction); see also Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006). The Contact Incidents
In this case, the panel characterized evidence of contact into two separate occurrences. The panel concluded that the incident involving the body-slamming on the bed (involving three related acts) constituted "one instance involving several acts of sexual contact which were committed in one continuous act of force and threats, and part of the same criminal transaction; thus, election is not required." See Alvarez, 2006 Tex. App. LEXIS 4904 at *6. With respect to the second occurrence in the kitchen (involving Alvarez's claimed fourth act), the panel concluded that the evidence constituted an extraneous act and, because no limiting instruction was requested, Alvarez forfeited error. Id. at *7. The Exposure Incidents
Alvarez points to three incidents of exposure. The panel concluded that Alvarez was indicted and convicted for the exposure incident occurring while Alvarez was seated on the couch in the living room while the victim babysat. Id. at *9. At trial, the victim admitted that she had given a statement to police and testified (at the earlier trial) indicating that Alvarez exposed himself in the bedroom. On cross examination, the jury heard the following exchange: Q. You're describing, in one place you're saying you're sitting on the floor playing with the baby. In the other one you're saying I walked-he called me into the room and I walked in and saw him expose himself. A. Correct. Q. Those are two very different statements, aren't they? A. Yes, sir. The victim also testified that Vasquez wore only a robe after he finished showering when she first arrived at the house; however, she denied exposure at that time. She testified that her prior statements as to his exposure while in the bedroom were incorrect. After the State rested its case, the defense requested that, as to the indicted counts, the State "clarify to which allegations he is referring so that we might respond." The trial court requested the State to "just make reference . . . to the exposing and . . . to the contact." In response, the State cited penal code authority. The trial court denied the defense motion for instructed verdict. The jury convicted on both the contact and indecency counts. The Panel Decision on the Jury Charge Question
Genital exposure that is part of an additional sexual offense does not constitute a separate offense. See Patterson v. State, 152 S.W.3d 88, 92 (Tex.Crim.App. 2004). The record is clear that all complained-of incidents of exposure and contact occurred on the same date. The victim had testified at the earlier trial that exposure occurred in the bedroom and, in this trial, she testified exposure occurred in the living room. She unequivocally testified that contacts occurred in the kitchen and in the bedroom. Even so, the record is unclear whether, during the contact incidents in the bedroom, that the exposure (that may or may not have occurred in the bedroom) was a separate offense and not subsumed by the contact incidents. While true that the jury, as the decisionmaker as to the victim's credibility, convicted on the separate counts of contact and exposure, it did so without the State's election of which act of exposure the State relied upon for conviction. Phillips, 193 S.W.3d at 910-13. Similarly, the State did not elect which acts of contact it relied upon for conviction. These distinctions are unaddressed in the panel opinion. Thus, Almanza applies. See Ex parte Smith, 185 S.W.3d 455, 467 (Tex.Crim.App. 2006) (holding that a constitutionally deficient jury charge, however, does not result in automatic reversal of a conviction under Almanza but we must also assess the harm that this deficient jury charge caused the defendant). Id.; Almanza, 686 S.W.2d at 171-74. Ineffectiveness of Counsel
In a subsidiary point, Alvarez asserts that his ineffectiveness of counsel claim remains unaddressed. I agree. The panel opinion summarily concludes that the record does not show trial counsel's reasoning behind the challenged conduct. I conclude that we should not find ineffective assistance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)); see also Tex. R. App. P. 44.2(a). Looking to our high court's most recent pronouncement on the matter of effectiveness claims, we must follow the legal standard from Goodspeed and rule 44.2(a). Importantly, in connection with the jury charge error, a determination of ineffectiveness is contemplated by both authorities. See id. Reconsideration En Banc
Appellate court panels are essentially three-judge courts. Thompson v. State, 89 S.W.3d 843, 856 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd.) (Jennings, J., concurring). En banc review at intermediate appellate courts was instituted to maintain uniformity of a court's decisions as a single, unitary body, even though the court may sit in panels. See O'Connor v. First Court of Appeals, 837 S.W.2d 94, 96 (Tex. 1992) (orig. proceeding). Rule 41.2 of the Texas Rules of Appellate Procedure governs the decision to grant a motion for rehearing by an en banc court: En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court's decisions or unless extraordinary circumstances require en banc consideration. Tex. R. App. P. 41.2(c); see also Tex. R. App. P. 49.7. When there is no conflict among panel decisions, the existence of "extraordinary circumstances" is required before en banc consideration may be ordered. Thompson, 89 S.W.3d at 856 (Jennings, J., concurring). The standard for en banc consideration is not whether a majority of the en banc court disagrees with all or a part of a panel opinion. Id. Neither is an assertion that an issue is "important" sufficient. Id. In his motion for reconsideration en banc, Alvarez articulates the extraordinary circumstances requiring full court review in terms of the sufficiency of appellate review of his third point of error. Jury charge error in connection with the grounds advanced in Alvarez's review are summarily dismissed in the panel's opinion. Similarly, in connection with his complained-of jury charge error, Alvarez's ineffectiveness of counsel claim, a constitutional claim, remains unaddressed. Rule 47.1 mandates that we hand down a written opinion that addresses every issue raised and necessary to final disposition of the appeal. Because I conclude that the panel opinion sidesteps the Almanza and ineffectiveness of counsel claims, I respectfully dissent to the en banc's majority decision to deny his motion.