Marcus Stephen Fleck v. The State of Texas

Summary

The Texas Fourteenth Court of Appeals held that the trial court erred by refusing to require the State to elect which of multiple alleged sexual-assault acts it would rely upon for conviction. Because the failure to require an election was constitutional error and the court could not conclude beyond a reasonable doubt that it did not contribute to the conviction, the court reversed the judgment and remanded for a new trial.

Holdings

1. When one act of sexual assault is alleged in the indictment but the evidence shows more than one act, the trial court must require the State to elect the act on which it will rely for conviction after the State rests its case-in-chief, when the defendant makes a timely request.
2. The failure to require an election was constitutional error that was not harmless beyond a reasonable doubt because the evidence concerning the five incidents was conflicting and the record did not establish which incident the State intended to support the conviction.
3. Because the State did not elect which incident it relied upon for conviction, the appellate court could not conduct a meaningful review of the evidence for legal sufficiency.

Questions Presented

1. Whether the trial court erred by refusing, after the close of the evidence and upon timely request, to require the State to elect which act of sexual assault it would rely upon for conviction.
2. Whether the failure to require an election was harmless beyond a reasonable doubt.
3. Whether the court could review the legal sufficiency of the evidence when the State had not elected the incident supporting the conviction.

Disposition

reversed_and_remanded