source: Caselaw Access Project

author: HERVEY, J.,

license: Public Domain

text:
    Ryan FOSTER, Appellant, v. The STATE of Texas.
    No. PD-0001-10.
    Court of Criminal Appeals of Texas.
    Dec. 8, 2010.

      Meril “Gene” Anthes, Jr., Austin, for Appellant.
    Giselle Horton, Asst. County Atty., Lisa C. McMinn, State’s Attorney, Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion of the Court

in which KELLER, P.J., MEYERS, PRICE, WOMACK, KEASLER, HOLCOMB and COCHRAN, JJ., joined.

Appellant was charged with a Class B misdemeanor of driving while intoxicated (DWI). Following the trial court’s denial of appellant’s motion to suppress, appel-Iant pled nolo contendere, pursuant to a plea agreement, and was placed on community supervision for eighteen months. Appellant appealed the trial court’s ruling on his motion to suppress, and the court of appeals decided that reasonable suspicion of intoxication did not exist when the police detained appellant to investigate whether he was intoxicated. Foster v. State, 297 S.W.3d 386, 390-94 (Tex.App.Austin 2009) (“reasonable suspicion did not exist to justify Foster’s detention for DWI”). We will reverse.

The suppression-hearing record reflects that on September 13, 2007, at approximately 1:30 a.m., Austin Police Department Homicide Detective Kurt Thomas was stopped at a red light in the right lane of a two-lane one-way street in an unmarked police car a few blocks from Austin’s Sixth Street bar district. Appellant’s truck came up extremely close behind Thomas’s vehicle, which Thomas appeared to describe as a lurch. Thomas testified that he heard a revving sound and noticed appellant’s truck lurch forward again. Thomas believed that appellant was attempting to get into the left lane, but appellant was so close to the police car that he did not have enough room to enter the left lane. Sergeant Eric de los Santos, driving a marked police car, pulled alongside Thomas and Foster, which “effectively prevented appellant from moving.” See Foster, 297 S.W.3d at 389. Thomas testified that he decided to “detain” appellant because he thought appellant’s driving was “unsafe and-due to where [they] were downtown and the time of night, [he] was concerned that maybe this driver was impaired.” ■ The officers exited their vehicles and approached appellant’s vehicle. The officers smelled alcohol as they approached appellant’s vehicle, and appellant was “removed” from his vehicle. Appellant was arrested for DWI after “a responding DWI enforcement officer conducted field sobriety tests.” See Foster, 297 S.W.3d at 389.

Thomas testified that, before becoming a homicide detective, he worked traffic patrol and had been part of DWI arrests. He also testified that, based on his training and experience in traffic patrol, it is common for many people to be impaired in Austin’s Sixth Street bar district late at night.

The trial court made express findings that Thomas’s testimony was credible and that he had reasonable suspicion to detain appellant for DWI in light of the time of night, the location near Austin’s downtown bar district, and appellant’s erratic driving — the “lurching” movements described in Thomas’s testimony. The State made no claim at the suppression hearing that appellant was not detained before the police approached his vehicle and smelled alcohol, and the trial court made no findings on exactly when appellant was detained by the police.

The court of appeals decided that appellant “was detained at the time the police officers blocked his vehicle, preventing him from leaving the scene, and began to approach.” See Foster, 297 S.W.3d at 891. The court of appeals also decided that reasonable suspicion did not exist to justify appellant’s detention for DWI. Foster, 297 S.W.3d at 394. The court of appeals acknowledged that this Court no longer employs the “as consistent with innocent activity as with criminal activity” test for reasonable suspicion. Foster, 297 S.W.3d at 393. Nevertheless, the court of appeals decided that “the plausibility of an innocent explanation [for the lurching movements] in this case affects [the] determination of whether there was a reasonable basis for suspecting that Foster was intoxicated.” Id. The court of appeals also decided that the time of night and location, standing alone and in combination with the lurching movements, were insufficient to support a reasonable suspicion of intoxication. Id. (“Intoxication cannot be inferred from the lurching movements alone, and while the lurching movements may be more suggestive of intoxication when combined with the location and time of night, the combined weight of these circumstances is not so much greater than the aggregation of their individual weights that it allows for a rational inference of intoxication.”). We granted the State’s discretionary-review petition on two grounds which present the following issues:

1. Whether the Third Court erred in applying the “as consistent with innocence as with criminal activity” standard in analyzing the totality of the circumstances and determining whether the of-fleers had reasonable suspicion to detain.
2. Whether the Third Court failed to give appropriate deference to the trial court’s implied factual findings when it held that Foster was detained “when he found himself barricaded on the front and side by two vehicles, one of which was a marked police car.”

A law enforcement officer may stop and briefly detain a person for investigative purposes on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In order to stop or briefly detain an individual, an officer must be able to articulate something more than an “inchoate and un-particularized suspicion or ‘hunch.’ ” Id. at 21, 88 S.Ct. 1868. Specifically, the police officer must have some minimal level of objective justification for making the stop, i.e., when the officer can “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Id. The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances. Woods, 956 S.W.2d at 38.

The court of appeals cited to this Court’s decision in Curtis in support of its decision that “the plausibility of an innocent explanation affects [the] determination of whether there was a reasonable basis for suspecting that appellant was intoxicated.” See Foster, 297 S.W.3d at 393 (citing Curtis v. State, 238 S.W.3d 376, 379 (Tex.Crim.App.2007)). However, this is contrary to this Court’s opinion in Curtis, which reiterated our previous rejection of this standard. See Curtis, 238 S.W.3d at 378 (court of appeals’s decision that there could have been a number of “non-intoxicated-related reasons” for the driver’s weaving was an application of the rejected “as consistent with innocent activity as with criminal activity” standard).

Our decision in Curtis also supports a decision that time of day is a relevant factor in determining reasonable suspicion. See Curtis, 238 S.W.3d at 380-81 (officers’ testimony that they saw defendant’s car weaving in and out of his lane several times over a short distance late night rationally supported an inference that the driver could be intoxicated). Similarly, we believe that location near a bar district where police have made numerous DWI arrests is also a relevant factor in determining reasonable suspicion.

Keeping in mind that the Fourth Amendment totality-of-the-circumstances test requires only- “some minimal level of objective justification” for the stop in this case, we hold there was reasonable suspicion for the police to have believed that appellant may have been intoxicated. In light of the time of night, the location, Thomas’s training and experience, and Foster’s aggressive driving, it was rational for Thomas to have inferred that appellant may have been intoxicated, thus justifying a temporary detention for further investigation. See Curtis, 238 S.W.3d at 381 (“The officers testified that they observed appellant’s car weaving in and out of his lane several times, over a short distance, late at night. A ‘rational inference’ from these facts could be that the driver was intoxicated. When viewed in light of the training officer’s extensive experience in detecting intoxicated drivers, coupled with both officers’ training to use the driver’s weaving specifically as an indicator of intoxicated driving, the trial court could have reasonably concluded that the articulated facts gave rise to enough suspicion to justify at least an investigation.”). Thomas articulated “something more than an inchoate and unparticularized suspicion or hunch” that objectively justified appellant’s detention. See Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (internal quotes omitted). We find the trial court’s ruling to be supported by the record and the law. See id.

The judgment of the court of appeals is reversed, and the judgment of the trial court is affirmed.

JOHNSON, J., concurred.

      . Thomas explained Foster’s lurches:
      Q. [DEFENSE ATTORNEY]: Now, in your offense report, you indicated that he pulled up initially extremely close to your vehicle. Right?
      A. [THOMAS]: That is correct.
      Q. Then you noticed you heard a revving sound from his engine; is that correct? A. Yes, sir. He — there was a revving sound and then there was another lurch forward.
      Q. When he lurched forward, based on what you saw, you believe he tried to turn in to the next lane?
      A. When he initially lurched, he lurched right behind me. It was the second time, I believe, that he was trying to get to the lane to the left of me.

      . Thomas also testified that he thought that appellant had committed a Traffic-Code violation of “unsafe start from stop position,” which he was not able to find in the “Traffic” or "City” Code. The court of appeals decided that the police lacked reasonable suspicion to detain appellant for any Traffic-Code violations, and we did not grant discretionary review to review this decision. See Foster, 297 S.W.3d at 392-93. Thomas testified:
      Q. When he made this movement — and you have termed it "unsafe start from stop position;” is that correct?
      A. Correct.
      Q. By the way, what is your basis for that traffic violation? Was it found in the Traffic Code? City Code?
      A. After this has [sic] happened, after looking for that specific title, I have not been able to find it.
      Q. Okay. Nevertheless, you decided to detain Mr. Foster?
      A. Yes, sir.
      Q. Based on the traffic violation?
      A. Based on what was occurring prior to my contact with him.
      Q. Okay. And that is the lurching of the vehicle? Coming extremely close, trying to get by you? Those weird vehicle movements?
      A. Well, I believed what was occurring behind me was unsafe, and I was concerned that — due to where we were at downtown and the time of night, I was concerned that maybe this driver was impaired. You know, that was one thing I was thinking of at that time.

      . The State claims that this is when appellant was detained. In its brief in the court of appeals, the State argued:
      The reporter's record shows that Detective Thomas “decided to detain” the driver because he thought the truck’s erratic movements and proximity to his own car were unsafe. Thomas was also concerned that the driver was impaired "due to where we were at downtown and the time of night.” Was Foster detained when Thomas decided to detain him, as the defense implies? No, because the reasonableness test is objective. An officer’s secret ambition to detain therefore cannot be dispositive. Moreover, nothing in the record up to that point speaks to any show of police authority or restraint on Foster's freedom to drive away. Instead, the record shows that, after Thomas observed the erratic driving behavior, he and Officer de [sic] los Santos approached Foster’s truck, which was already at a standstill of its own accord. Both officers- detected a strong odor of alcoholic beverages about the driver. Thomas testified that Foster was then "removed from the vehicle.” It is reasonable to infer from this that Foster was detained when he got out of his truck so that police could investigate intoxication.
      (Citations to record and authority omitted).

      .Thomas described his police department experience:
      Q. [STATE]: What were your duties before homicide detective?
      A. [THOMAS]: Before I was a detective, I was a police officer.
      Q. Did you ever work patrol or traffic?
      A. Yes, I did.
      Q. Have you had occasion to arrest or cite people for moving violations?
      A. Yes.
      Q. And have you ever been part of a DWI arrest or arrested anyone for DWI?
      A. Yes.
      Q. And have you ever been on patrol in this 6th Street area?
      A. Yes, I have.
      Q. So I will ask you again: Based on the training and experience you had, was it common for people when driving in this area of 6th Street — that area of downtown late at night, is it common for many people to be impaired?
      A. Yes.
      Q. So would you say when you see someone indicating some erratic or unsafe driving in this part of town that it might be a natural inclination for someone to suspect that person of being impaired or intoxicated?
      A. Yes.

      . The trial court found:
      Okay, Well, it is my — to sum this up, I find the officer’s testimony credible. I find that his testimony which indicated erratic movements of the defendant's car, including a lurch up to a distance within inches of the officer’s car, although he was — the officer was stopped at a red light; these movements occurring on 6th Street — in the 6th Street area;
      probably this location being only a few blocks from the party district of 6th Street and occurring at 1:30 in the morning is sufficient evidence to justify the stop of this vehicle. I believe all of those factors together — maybe not if this happened in a neighborhood at 2:30 on Sunday afternoon, but the location and the time I think are factors that create a reasonable suspicion of DWI.

      . See also Foster, 297 S.W.3d at 390 n. 2 ("At the suppression hearing, the State did not contend that the detention occurred only after Thomas and De Los Santos detected the odor of alcoholic beverages, nor did it argue that the detention was justified by any traffic violations. Instead, the State took the position that Thomas had reasonable suspicion to detain Foster based on his unsafe and erratic driving, combined with the lateness of the hour and the proximity of the Sixth Street bar district.”).

      . See Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997) (holding that the "as consistent with innocent activity as with criminal activity” construct is no longer a viable test for determining reasonable suspicion).

      . Our disposition of the first ground for review makes it unnecessary to address the second ground for review. We will, therefore, presume that appellant was detained "when he found himself barricaded on the front and side by two vehicles, one of which was a marked police car.” We nevertheless question the court of appeals’s opinion to the extent that it suggests that a person is "detained” by the police simply because that person is in a vehicle behind an unmarked police car and alongside a marked police car at a traffic light. We express no opinion on whether appellant was "detained” when the officers exited their vehicles and began to approach appellant’s vehicle before they smelled alcohol.

      . Our decision in Woods fully explains why this Court rejected the "as consistent with innocent activity as with criminal activity” construct for determining reasonable suspicion for a temporary detention.

      . We note that the trial judge explained that her conclusion might have been different had "this happened in a neighborhood at 2:30 on Sunday afternoon.” Time and location are relevant and appropriate considerations when doing a totality of the circumstances review to determine whether or not reasonable suspicion exists.

      . See United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ("The officer, of course, must be able to articulate something more than an inchoate and unpar-ticularized suspicion or hunch. The Fourth Amendment requires some minimal level of objective justification for making the stop. That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means a fair probability that contraband or evidence of a crime will be found, and the level of suspicion required for a Teny stop is obviously less demanding than that for probable cause.”) (Internal quotes and citation to authorities omitted).

      . We note that the court of appeals relied on its decision in State v. Guzman in which it declined "to hold that an officer may lawfully detain on suspicion of intoxication any driver who is seen by the officer to spin a tire at a downtown intersection at night.” See Foster, 297 S.W.3d at 393-94 (finding that Foster’s case is similar to the facts in State v. Guzman, 240 S.W.3d 362, 365, 368 (Tex.App.-Austin 2007, pet. ref'd)). We find Guzman to be factually distinguishable from this case while also recognizing that each case must be resolved on the totality of its own facts. In Guzman, an officer detained the intoxicated defendant at approximately 11:50 p.m. after observing a tire on the defendant’s pickup truck spin for a few seconds when the defendant’s truck began to accelerate at a stoplight. See Guzman, 240 S.W.3d at 365-67. The officer stopped and detained Guzman, because the officer thought that Guzman had committed a Transportation-Code traffic offense ("exhibiting acceleration”) and not because, as in this case, the officer thought that Guzman was driving unsafely and might be intoxicated. See id. The principal issue in Guzman was whether Guzman committed the Transportation-Code offense for which he was detained. See id. The court of appeals decided that Guzman did not commit this or any other Transportation-Code offense. See id. More important, the court of appeals in Guzman, as it did in this case, applied the discredited "as consistent with innocent activity as with criminal activity” construct when it stated that there were "innocent reasons why a tire may lose traction and spin upon acceleration from a stop.” See Guzman, 240 S.W.3d at 368.


author: PER CURIAM. HOLCOMB, J.,

text:
    Ex Parte Scott Louis PANETTI, Applicant.
    No. WR-37,145-03.
    Court of Criminal Appeals of Texas.
    Dec. 15, 2010.
    Gregory W. Wiercioch, San Francisco, for Appellant.
    E. Bruce Curry, D.A., Kerrville, Lisa C. McMinn, State’s Atty., Austin, for State.
   ORDER

PER CURIAM.

This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5.

Applicant was convicted September 1995 of the offense of capital murder. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant’s conviction and sentence on direct appeal. Panetti v. State, No. 72,230 (Tex.Crim.App. Dec. 3, 1997) (not designated for publication). This Court denied Applicant’s initial post-conviction application for writ of habeas corpus. Ex parte Panetti, No. WR-37,145-01 (Tex. Crim App. May 28, 1998) (not designated for publication). This Court dismissed Applicant’s first subsequent application for writ of habeas corpus. Ex parte Panetti, No. WR-37,145-02, 2009 WL 3368707 (Tex.Crim.App. Oct. 21, 2009) (not designated for publication). Applicant’s instant post-conviction application for writ of habeas corpus was received in this Court on October 20, 2010. Applicant presents two allegations.

Applicant’s claims fail to meet the dictates of Article 11.071, § 5. Accordingly, we dismiss his application.

IT IS SO ORDERED.

JOHNSON and HOLCOMB, JJ., would grant.

HOLCOMB, J., wrote a dissenting statement which JOHNSON, J., joined.

HOLCOMB, J.,

filed a dissenting statement, in which JOHNSON, J., joined.

In Indiana v. Edwards, 554 U.S. 164, 177-78, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), the United States Supreme Court first recognized a mental-illness-related limitation on a defendant’s Sixth Amendment right to self-representation:

“[T]he Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky [v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960),] but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.”

Given the Supreme Court’s decision in Indiana v. Edwards, I would file and set Scott Louis Panetti’s first subsequent application for writ of habeas corpus in order to consider his claim that the trial court violated the Eighth Amendment when it allowed him, though severely mentally ill, to represent himself at his capital murder trial.

In September 1992, Panetti shot and killed his in-laws, Joe and Amanda Alvarado, during a single criminal transaction. Soon thereafter a Gillespie County grand jury returned an indictment charging Pan-etti with the capital murder of the Alvara-dos under Texas Penal Code § 19.03(a)(7)(A). In September 1994, the trial court, at defense counsel’s request, impaneled a jury to determine whether Panetti was competent to stand trial under the indictment. At that competency hearing, two witnesses testified for the defense. The first witness, Richard Mosty, was one of Panetti’s defense counsel.

“Mosty testified that the court appointed him to represent [Panetti] in September 1992. He stated that during this two year period he had no useful communication with [Panetti] regarding case proceedings, [Panetti’s] thought processes were bizarre, and [Panetti] had multiple personalities. Mosty further stated that when [Panetti] was in a stable environment, [he] became better at communicating on a basic level. However, when [Panetti] entered a stressful environment such as the courtroom or switching jails, [he] would again become delusional. Finally, Mosty testified that [Panet-ti] had been the best Mosty had ever seen in the few days preceding the [competency] hearing. Nevertheless, [Panet-ti] would still ‘blank out’ when counsel tried to discuss the case.” Panetti v. State, No. 72,230 (Tex.Crim.App.-Dec. 3, 1997), slip. op. at 22-23 (not designated for publication).

The second witness for the defense was Dr. Richard Coons, a psychiatrist.

“Coons examined [Panetti] on five occasions from March 1993 through September 1994. Coons concluded [Panetti] tended to decompensate and his thinking became inefficient when under stress. He described [Panetti’s] thought process as ‘tangential,’ meaning [he] would go off on tangents and never return to the original subject being discussed. Coons further noted [Panetti] had been diagnosed as a schizophrenic and had been in and out of various State and V.A. [Veterans Administration] hospitals since 1981. After concluding [Panetti] was not competent to stand trial, Coons noted that schizophrenia can be controlled and felt [Panetti] should be hospitalized in order to receive the proper medications.” Id. at 23.

Another psychiatrist, Dr. Lee Simes, testified for the State.

“Simes concluded [Panetti] was mentally ill and agreed with [Panetti’s] previous diagnosis as a schizophrenic. He noted [Panetti] was very concerned about what medication he might be able to get after the hearing and equated the hearing to a chess game between two doctors. Simes further admitted [Panetti] had delusional thinking which could interfere with [his] communications with his attorneys. However, Simes stated that as of his final evaluation one day before the instant hearing, [Panetti] was competent to stand trial.” Id. at 24-25.

At the conclusion of the competency hearing, the jury found Panetti competent to stand trial. Sometime thereafter Panet-ti asked the trial court to dismiss his two court-appointed counsel and allow him to represent himself. The trial court, acting under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), a non-capital case, admonished Panetti regarding the nature of his right to counsel and the many disadvantages of waiving that right, especially in a capital case. The trial court also informed Panetti that it would prefer that he not waive his right to counsel. The State and defense counsel also stated that they preferred that Panet-ti not waive his right to counsel. Nevertheless, Panetti insisted on representing himself. At that point, the trial court, under Faretta, had no choice but to grant Panetti’s request, and so it did. The court appointed standby counsel in an order that strictly limited him to procedural advice.

At the guilt stage of trial, Panetti pled not guilty by reason of insanity. In support of that defense, Panetti presented numerous witnesses, including himself.

“[Panetti] testified [that] when he awoke on the morning of [the offense], his alternate personality, ‘Sergeant Iro-nhorse’ or ‘Sarge,’ had control. It was Sarge who decided to shave his head, dress in military attire, and gather weapons [with which to commit the offense]. [Panetti] claimed he could remember everything Sarge did, even though Sarge is a different personality. He further claimed he argued with Sarge about what Sarge was doing, but Sarge won.
* * *
“Richard Mosty, [Panetti’s] former trial counsel, testified that [Panetti’s] mental health records reflected the following: committed in 1981 at Kerrville State Hospital for dependent personality disorder; committed in 1986 at Starlight Village Hospital for schizophrenia, delusions, disorientation as to time and place, seriously-impaired judgment, hostility, psychosis, and trying to ‘extract’ the Devil from his home by taking his furniture outside and spraying it with water; treatment at the Waco Veterans Administration Hospital; treatment at Tomah Hospital in Wisconsin in 1986; recommitted to Kerrville State Hospital in 1990 for threatening to kill [his] wife, baby, father-in-law, and self and starting to use the name Sergeant Ironhorse.
“Marcie Panetti, [Panetti’s] sister-in-law, testified she met [Panetti] about fifteen years before and knew immediately [he] was mentally ill. She did not see him again until the trial, but did speak to him on the phone a few months before her instant testimony. She stated that it was obvious he was mentally ill by the way he rambled and talked constantly.
“Dr. John Ramsey, [Panetti’s] former family physician, testified he had seen [Panetti] several times for psychiatric problems. He stated that in 1984 and 1985 [Panetti] began to come into the office becoming more demanding, rambling, and clearly suffering from a manic depressive illness exhibiting extreme ideas and grand schemes. To Dr. Ramsay’s knowledge, after this, [Panetti] entered a psychiatric facility and was seen by Ramsey on only a few occasions.
“Dr. Eugene waters, a contract psychiatrist with the Bell County Jail, stated he first saw [Panetti] in July 1994. He testified [Panetti] was delusional and talked about ‘almost mythologcal characters that [he] appeared to identify with.’ Dr. Waters felt [Panetti] was preoccupied with these characters. Waters further stated [Panetti] began refusing his medications in April 1995.
“Evonne Panetti, [Panetti’s] mother, testified the last time [he] came with Sonja [his wife] and his daughter to visit, he was fine at first and then all of a sudden changed. He started ‘talking off the wall’ and ranting and raving. She said [Panetti] would be ‘Ironhorse’ and ‘would just look; [he] would be in a daze a lot and glaring.’ She further testified Sonja told her that Ironhorse [was] the other person that live[d] with them.
“Dr. F.E. Seale testified he treated [Panetti] for thought disorder and schizophrenia at Starlight Village Hospital. He stated it took up to 2400 milligrams of thorazine per day to keep [Panetti] under control where ‘100 milligrams would knock the average person out.’ He further testified that without proper medication for a period of three or four days, [Panetti] could lapse into a severe psychosis....
“Finally, Dr. Wolfgang Selck testified .... Selck stated that in 1986 ... [Panetti] was diagnosed as psychotic.” Panetti v. State, supra, at 5, 7-9.

On direct appeal, Panetti argued that the trial court had erred in allowing him to represent himself. We disagreed, holding that the trial court had satisfied the requirements of Faretta. Panetti v. State, supra, at 25-28.

In his initial post-conviction application for writ of habeas corpus, Panetti argued that his conviction was void because he had been incompetent to waive his right to counsel. We held, however, that Panetti’s argument had been raised and addressed on direct appeal. Ex parte Panetti, No. WR-37,145-01 (Tex.Crim.App.-May 28, 1998) (not designated for publication).

In his first subsequent post-conviction application for writ of habeas corpus, Pan-etti, citing Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, argued that the trial court’s decision to permit him to represent himself violated his rights under the Eighth Amendment. We disagreed, holding that the Indiana v. Edwards decision was not new law and that, therefore, Pan-etti’s application was barred by Texas Code of Criminal Procedure article 11.071, § 5. Ex parte Panetti, No. WR-37,145-02, 2009 WL 3868707 (Tex.Crim.App.-Oct. 21, 2009) (not designated for publication).

Now we have before us Panetti’s second subsequent post-conviction application for writ of habeas corpus. In that application, Panetti cites Chadwick v. State, 309 S.W.3d 558 (Tex.Crim.App.2010), in which this Court recognized, for the first time, the fact that a finding of mental illness can trump the right of self-representation. Panetti argues again that the trial court’s decision to permit him to represent himself violated his rights under the Eighth Amendment. I would probably agree with the majority that our Chadwick decision was not new law and that, therefore, Pan-etti’s application could be considered barred by Article 11.071, § 5.

However, I now realize that we erred in dismissing Panetti’s first subsequent post-conviction application on the basis of Article 11.071, § 5. Indiana v. Edwards did constitute new law, because it was the first case in which the Supreme Court recognized a mental-illness-related limitation on the Sixth Amendment right of self-representation:

“[A]n individual [who is severely mentally ill] may well be able to satisfy [the] mental competence standard [of Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788], for he will be able to work with counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help of counsel ...
“The American Psychiatric Association (APA) tells us (without dispute) in its amicus brief filed in support of neither party that ‘[disorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms of severe mental illnesses can impair the defendant’s ability to play the significantly expanded role required for self-representation even if he can play the lesser role of represented defendant’ ...
“Moreover, insofar as a defendant’s lack of capacity threatens an improper conviction or sentence, self-representation in that exceptional context undercuts the most basic of the Constitution’s criminal law objectives, providing a fair trial.” Indiana v. Edwards, 554 U.S. at 175-77 [128 S.Ct. 2379].

The Indiana v. Edwards mental-illness-related limitation on the Sixth Amendment right of self-representation is the very basis of Panetti’s Eighth Amendment claim. In other words, it was in Indiana v. Edwards that the Supreme Court first suggested that the Sixth Amendment right to self-representation was not absolute and that it could be trumped by severe mental illness. We should, therefore, reconsider, on our own initiative, Panetti’s first subsequent application. See Ex parte Moreno, 245 S.W.3d 419, 420 (Tex.Crim.App.2008).

The Eighth Amendment requires heightened reliability in the adjudicative process leading up to a death sentence. Lowenfield v. Phelps, 484 U.S. 231, 238-39, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion). Such heightened reliability is inconsistent with allowing a severely mentally ill defendant to represent himself at trial, Faretta notwithstanding, no matter how well he may appear to the trial court at that time. The risk of an unfair trial is too great to tolerate. The trial record in this case establishes conclusively that Panetti is severely mentally ill and has been so for a very long time. The Eighth Amendment was thus violated when the trial court permitted Panetti to represent himself.

In addition, the judiciary has an independent interest in ensuring that criminal trials appear fair to all who observe them. Indiana v. Edwards, 554 U.S. at 177, 128 S.Ct. 2379; Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). That interest was not served by what occurred at Panetti’s trial.

I would file and set Panetti’s first subsequent post-conviction application for writ of habeas corpus in order to consider his Eighth Amendment claim. Because the majority does not do so, I respectfully dissent.

      . Our opinion on direct appeal did not explain what "decompensate” meant in this context.

      . In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), a non-capital case, the Supreme Court held that an accused has a Sixth Amendment right to conduct his own defense. To proceed pro se, a defendant must voluntarily and intelligently waive the right to counsel. Id. at 835, 95 S.Ct. 2525. To ensure a valid waiver, the trial court must ensure that the defendant is aware of the dangers and disadvantages of self-representation. Ibid.

      . The trial court’s order to standby counsel read, in relevant part, as follows:
      "1. Unless otherwise requested by the Defendant, standby counsel is to be seen and not heard.
      "2. Standby counsel is not to sit at the counsel table with Defendant unless Defendant asks him to do so.
      "3. Standby counsel, when requested by the Defendant, may advise Defendant on procedural matters only. Standby counsel shall not, at any time, advise Defendant on any substantive matters, even if requested to do so by Defendant.
      "4. Standby counsel may not participate in any part of the trial process unless specifically requested to do so by the Defendant, and then only on procedural matters by way of giving advice to the Defendant.
      "5. Standby counsel shall not question any prospective jurors nor make any suggestions or offer advice as to which prospective jurors might be favorable to the Defendant or Prosecution.
      "6. Standby counsel shall not exercise any peremptory challenges or challenges for cause on any prospective jurors.
      "7. Standby counsel shall not advise Defendant as to any particular areas of inquiry during voir dire.
      "8. Standby counsel shall not make any objections unless requested to do so by the Defendant.
      "9. Standby counsel shall not make any motions for mistrial unless requested to do so by the Defendant.
      "10. Standby counsel shall not advise Defendant of any procedural irregularities, either by the State or by the Defendant, unless requested to do so by the Defendant.
      "11. Standby counsel shall not volunteer any procedural assistance to Defendant.
      "12. Standby counsel shall not do any other act or take any other action, which in the opinion of either standby counsel or the Defendant, would in any way interfere with or affect the right of the Defendant to represent himself."

      .Panetti's standby counsel at trial has filed an affidavit in this case, which reads, in part, as follows:
      "[Scott Panetti's] incompetence affected his case. Bruce Curry, the DA, had put Scott’s ex-wife, Sonja Alvarado on the stand on the first day of testimony. She was the first witness. It was her parents that Scott had killed. After Scott’s bizarre questions and actions to Sonja, the Jury was ready to give him the death penalty. Scott angered the Jury by his demeanor and actions. I tried to advise Scott on the method of questioning his ex-wife, but he did not listen. I told him not to go over the shooting and other details of the family that were not relevant. It did no good to advise Scott.
      "Scott was repeating questions. He was splitting hairs with the witnesses on the confession. Scott was calling witnesses that had nothing to do with insanity. Scott was really upset over the release of [State’s witness] Dr. Simes. Judge Abies had warned Scott that Dr. Simes would not be available and to call him since he was present. Scott said he did not understand what the Judge had told him and he was confused.
      "When Scott testified, it looked like he went into a trance. Scott was sitting in the witness chair with [Texas] Ranger Cleat Buckelew between him and the Jury. Scott had his head down, not looking at the Jurors although he was seated directly by them. Scott recalled in his trance-like state, the details of the shooting, reciting what happened in the third person as a dialogue. Scott said, 'Sarge ran into the room. What was Sarge doing? Where is Birdie?’ Scott was pointing his hand out across the jury box like he was shooting as he recited, ‘Boom, Boom, Boom.’ Scott’s head was down as he spoke while he pointed at the jury with his booms. He could not see the reaction of the Jury. The Jury was visibly upset by the pointing demonstration. I had seen the Jurors who were sitting closest to Scott, move away when he sat down. Now he was blindly pointing at the panel while he spoke of ‘Sarge shooting Joe and Amanda Alvarado.' This was a show of a mentally incompetent man and did more to give him the death penalty than any other event in trial.
      "This was not a case for the death penalty. Scott's life history had long term mental problems and made an excellent case for mitigating evidence. Scott did not present any mitigating evidence because he did not understand the proceeding. He obviously thought that this courtroom ‘show’ would be enough. Although many friends and family were available to testify, Scott only called me at punishment to rebut a statement that Dep. Gideon made about Scott. I tried to make Scott realize what mitigation meant. I do not think that he understood the concept or how to present evidence or argue for mitigation in his own case. In my opinion, there was much to present, but he was mentally incapable of showing the evidence.

      "Scott dressed in a ‘Tom Mix’ style costume like an old TV western. Scott wore his hat in Court. He had pants that looked like leather suede tucked into his cowboy boots. He wore a cowboy style shirt with a bandana. The shirt was the double fold over type western shirt. One shirt was a green color, the other was burgundy. Scott wore a big cowboy hat that hung on a string over his back. It was a joke. It was like out of a dime store novel. Scott constantly used an old west vernacular in his speech. He used words like ‘bronc steer,’ ‘run away mule,’ and 'shoe the bosses' hoss-es.’

      "Scott was not able to represent himself due to his mental incompetence. His bizarre actions and words affected witnesses and the Jury. Scott was not able to rationally understand his death penalty trial. I believe that his incompetence brought him the death penalty. In simple terms, by representing himself he hung himself. Scott's incompetence prevented him from asking for or using my assistance as his standby. I was not able to assist Scott in any meaningful way because he was so mentally incompetent. As a result, his trial was truly a judicial farce, and a mockery of self-representation. It should have never been allowed to happen, or, at least, stopped.”


author: Opinion By Justice FITZGERALD.

text:
    Calvin Bernard SUMRELL, Appellant, v. The STATE of Texas, Appellee.
    No. 05-08-00732-CR.
    Court of Appeals of Texas, Dallas.
    July 30, 2009.
    Rehearing Overruled Sept. 18, 2009.
    Discretionary Review Granted Feb. 24, 2010.

      Lori L. Ordiway, Dallas, for Appellant. Craig Watkins, Dallas County Dist. Atty., Patricia Poppoff Noble, Asst. Dist. Atty., Dallas, for State.
    Before Justices FITZGERALD, LANG, and SMITH.

      . The Honorable Bea Ann Smith, Justice, Court of Appeals, Third District of Texas at Austin, Retired, sitting by assignment.

   OPINION

Opinion By Justice FITZGERALD.

Calvin Bernard Sumrell appeals his conviction for delivery of four grams or more but less than two hundred grams of cocaine. After the jury found appellant guilty, the trial court sentenced appellant to twenty-five years’ imprisonment and a $1000 fine. Appellant brings five issues on appeal, including that the trial court erred by conducting a portion of voir dire when appellant was not present. We reverse the trial court’s judgment and remand the cause for further proceedings.

JURY SELECTION

In his first issue, appellant asserts the trial court erred in conducting a portion of the voir dire of the prospective jurors without appellant present.

After the State finished its voir dire, the trial court called a recess and then told appellant he had noticed “during voir dire you’ve been very active and somewhat vocal with your lawyer.... I think it’s hurting you in front of the jury.” The trial court also told appellant, “If you get disruptive or unruly, I can put you in the holdover, let you finish the trial there, but I don’t want you to hurt the case.” After appellant apologized, the court said appellant did not have to apologize and that the court was not upset but was only concerned that appellant was hurting his case before the jury. The court reminded appellant that he should “want to create a good impression in front of that jury.”

Appellant’s defense counsel then proceeded to voir dire the prospective jurors. Two prospective jurors stated they were bothered by appellant’s behavior in court. Defense counsel then asked the panel if any of them had formed a bias against appellant “because of things that you’ve seen this morning like have been described,” and additional prospective jurors raised their hands.

After defense counsel finished her voir dire of the panel, the court took a recess. The record then shows the attorneys and the court discussing which prospective jurors they had agreed should be dismissed, and the court stated, “[cjonfirm those with the defendant out.” The attorneys and the court then discussed which prospective jurors they needed to call for individual questioning about bias due to appellant’s behavior during the State’s voir dire. During this discussion, the trial court commented that appellant “behaved better during your [defense counsel’s] voir dire when you were up.”

After more discussion, and before the first prospective juror entered the courtroom for individual questioning, the trial court stated, “I guess we need Mr. Sumrell back out here.” The record does not show whether appellant returned to the courtroom at that time. The record shows the court and the attorneys questioned seven prospective jurors about whether they were biased against appellant because of his behavior during voir dire. Three of the prospective jurors were dismissed for cause after they stated they were biased, and the other four stated they could set aside appellant’s behavior and were not biased against him. Of those four, two were peremptorily challenged by defense counsel and the other two served on the jury. After individual questioning of the last prospective juror, the trial court stated, “Let’s review the jurors we’ve lost one more time with Mr. Sumrell present,” and the court listed the numbers of the prospective jurors dismissed for cause. The court recessed for the lawyers to make their peremptory challenges. When the court reconvened, the court stated, “Let me call off the names of the jurors. Let me have Mr. Sumrell.” The record shows the prospective jurors re-entered the courtroom. The court announced the selected jurors and dismissed the remaining prospective jurors.

The next day, defense counsel stated she selected the jury without appellant’s input and that appellant “expressed concerns this morning he was not allowed to pick his own jury yesterday.” She stated she had fifteen years’ felony-trial experience. She then observed that appellant is African American, that the jury included five African Americans, and that she was pleased with the selected jury. Defense counsel did not elicit any testimony from appellant.

As part of the right of confrontation under article I, section 10 of the Texas Constitution and the Sixth Amendment to the United States Constitution, a defendant has a constitutional right “to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.” Faretta v. California, 422 U.S. 806, 820 n. 15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); see Miller v. State, 692 S.W.2d 88, 90 (Tex.Crim.App.1985). It is well accepted that the jury-selection process is one of those stages. See, e.g., Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Lewis v. United States, 146 U.S. 370, 375, 13 S.Ct. 136, 36 L.Ed. 1011 (1892); Hopt v. Utah, 110 U.S. 574, 578, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir.2002); United States v. Rolle, 204 F.3d 133, 136 (4th Cir.2000); Miller, 692 S.W.2d at 90. A defendant waives this constitutional right by voluntarily absenting himself after the commencement of trial proceedings. Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) (per curiam) (waiver by voluntarily not returning to court); Allen, 397 U.S. at 342, 90 S.Ct. 1057 (waiver by voluntary disruption of trial); Miller, 692 S.W.2d at 91 (waiver by voluntarily not returning to court).

The record shows appellant was present during the general voir dire by the State and defense counsel. However, the State concedes on appeal that appellant was absent during the individual questioning of the seven prospective jurors who stated they had formed a bias against appellant based on his behavior.

The State asserts there was no constitutional violation because there was no indication in the record that appellant’s absence was not voluntary. The record shows appellant had been denied a bond reduction and that his defense counsel was court appointed. The judgment’s crediting appellant with time served also indicates appellant was in custody during the trial. The court’s statements, “we need Mr. Sumrell back out here” and “[l]et me have Mr. Sumrell,” also indicate appellant was in custody; therefore, appellant’s presence or absence from the courtroom was not within his control. We will not presume on the record before us that appellant’s absence was voluntary. See Bledsoe v. State, 936 S.W.2d 350, 351 n. 2 (Tex.App.-El Paso 1996, no pet.). Accordingly, we conclude the exclusion of appellant violated his constitutional right to be present in court during jury selection. See Hodges v. State, 116 S.W.3d 289, 296 (Tex.App.-Corpus Christi 2003, pet. ref'd).

Having found appellant’s constitutional rights were violated, we must consider whether that violation constitutes reversible error. When a defendant’s constitutional right to be present during the trial has been violated, we consider whether the defendant’s presence bears “a substantial relationship to the opportunity to defend,” and if it does not, then any error is harmless. Bledsoe, 936 S.W.2d at 351 (quoting Adanandus v. State, 866 S.W.2d 210, 219 (Tex.Crim.App.1993)). Under rule of appellate procedure 44.2(a), a case with constitutional error must be reversed unless the reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex.R.App. P. 44.2(a).

In this case, the right violated was appellant’s right to be present during the entire jury-selection process. In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), the Supreme Court discussed the importance of the defendant’s presence during jury selection: “[Djefense may be made easier if the accused is permitted to be present at the examination of jurors or the summing up of counsel, for it will be in his power, if present, to give advice or suggestion or even to supersede his lawyers altogether and conduct the trial himself.” Id. at 106, 54 S.Ct. 330. In United States v. Camacho, 955 F.2d 950 (4th Cir.1992), the Fourth Circuit also discussed the issue:

It is of the utmost importance that the defendant be present when the jury is being selected.... [T]he defendant has unique knowledge which is important at all stages of the trial, including voir dire. At the voir dire he may, for example, identify prospective jurors that he knows. He may also have knowledge of facts about himself or the alleged crime which may not have seemed relevant to him in the tranquility of his lawyer’s office, and thus may not have been disclosed, but which may become important as the individual prejudices or inclinations of the jurors are revealed. He may also be a member of the community in which he will be tried and might be sensitive to particular local prejudices his lawyer does not know about.

Id. at 956 (quoting United States v. Alessandrello, 637 F.2d 131, 151 (3d Cir.1980) (Higginbotham, J., dissenting)).

In Bledsoe v. State, the El Paso Court of Appeals carefully set out four fundamental reasons that the defendant’s presence during jury selection bears a reasonably substantial relationship to the opportunity to defend. First, voir dire is the only opportunity for the prospective jurors to view the defendant for the purpose of discovering whether any of them were acquainted with him. Bledsoe, 936 S.W.2d at 352. Second, voir dire provides the defendant an opportunity to view the prospective jurors face-to-face and determine whether he knows any of them and whether any of them are biased for or against him. Id. Third, by being present, the defendant may assist his counsel by watching the prospective jurors’ reactions to the counsel for both sides. Id. Finally, the defendant’s presence enables him not only to observe voir dire but also to participate in the jury-selection process. Id.

In this case, the first factor does not apply because appellant was present during the general voir dire presented by the State and the defense, and the prospective jurors had the opportunity to view appellant to see if any of them knew him, and none did. The second factor does apply. Although appellant had the opportunity to view the prospective jurors to see if he knew any of them, he was denied the continued right to view them during the individual questioning to determine whether any were biased against him.

Likewise, the third and fourth factors also apply. Had appellant been present in the courtroom during the individual questioning of the prospective jurors, he could have listened to the questions asked and the prospective jurors’ responses and observed their demeanor. His observations would have enabled appellant to consult with his defense counsel in the crucial determination of the exercise of peremptory challenges. However, because appellant was absent from the courtroom during the individual questioning of the prospective jurors, he was unable to assist his counsel in exercising the peremptory challenges, and defense counsel exercised the peremptory challenges without permitting appellant to participate in that decision.

The record shows that when defense counsel exercised peremptory challenges against two of the jurors who had expressed bias against appellant, defense counsel still had five peremptory challenges remaining. Without consulting appellant, defense counsel exercised the remaining peremptory challenges against other prospective jurors, permitting two prospective jurors who had expressed bias against appellant to serve on the jury. Had appellant been present during the individual questioning of those prospective jurors, he could have participated with his counsel in the decision whether to exercise peremptory challenges against those prospective jurors. We conclude that appellant’s presence during the individual voir dire of the prospective jurors bore a reasonably substantial relationship to the opportunity to defend. See Bledsoe, 936 S.W.2d at 352.

In arguing that any error was harmless, the State cites cases holding no harm exists from the defendant’s exclusion from the courtroom when nothing that occurs in the defendant’s absence could affect him or when what occurred in the defendant’s absence inured to his benefit. See Weber v. State, 829 S.W.2d 394, 396-97 (Tex.App.Beaumont 1992, no pet.); Wesley v. State, 749 S.W.2d 933, 934-35 (Tex.App.-Texarkana 1988, no pet.). The State argues that because the trial court sustained defense counsel’s challenges for cause to three of the seven prospective jurors who originally expressed being biased against appellant, “it is clear that everything that occurred in Appellant’s absence inured to his benefit.” We disagree. Four of the prospective jurors who originally said appellant’s behavior biased them against him were not dismissed for cause, defense counsel had to exercise peremptory challenges against two of them, and the remaining two were seated on the jury that convicted appellant.

The State also argues appellant’s absence benefitted him because “[o]nly in Appellant’s absence would defense counsel be assured that the challenged panel members would speak truthfully about Appellant having left a bad impression on them.” We decline to engage in such speculation. The prospective jurors were under oath, sworn to give truthful answers to the questions asked of them. See Tex.Code Crim. Proc. Ann. art. 35.02 (Vernon 2006). One of the bases of the American judicial system is that persons sworn to tell the truth will speak truthfully in the defendant’s presence even when the statements are harmful to the defendant.

The State also argues appellant invited the error because the situation he complains of resulted from his own actions. The State cites Garcia v. State, 919 S.W.2d 370 (Tex.Crim.App.1994). In that capital-murder case, during the jury-selection process, the trial court notified the defendant’s counsel that on a particular day, additional prospective jurors would be qualified and instructed. Id. at 393 (op. on reh’g). The defendant’s counsel informed the court that he would not be present during the procedure, and both defendant and his counsel indicated on the record that they had no objection to the proceedings occurring without their presence. Id. On appeal, the defendant argued the trial court violated his right to be present. The court of criminal appeals held the defendant was not denied his right to be present — he waived it. Id. at 394.

The situation in Garcia bears no resemblance to the case before us. In this case, appellant did not state that the proceedings could proceed in his absence. Nothing in the record shows appellant did anything to waive his right to be present. Defense counsel’s remarks, in fact, show appellant desired to be present. The record contains no explanation for his absence. Although the trial court stated it could put appellant in the holdover cell if he were disruptive or unruly, the record does not show, and the trial court did not find, that appellant was disruptive or unruly. Instead, the court commented on appellant’s improved behavior during defense counsel’s general voir dire. The trial court was not upset by appellant’s conduct and told appellant he did not need to apologize. The record does not show appellant’s exclusion from the courtroom during the questioning of the individual prospective jurors was related in any way to appellant’s own actions. We conclude the record does not show appellant invited the error of which he complains on appeal.

At a minimum, the record shows appellant wanted to consult with defense counsel and actively participate in his trial. Defense counsel’s statements the following day show that appellant desired to participate in the jury-selection process and objected to his exclusion.

After reviewing the entire record, we cannot conclude beyond a reasonable doubt that appellant’s absence from the courtroom during the jury-selection process did not contribute to his conviction. See Tex.R.App. P. 44.2(a). We sustain appellant’s first issue. Because our resolution of appellant’s first issue resolves the appeal, we need not reach his remaining issues. See Tex.R.App. P. 47.1.

We reverse the trial court’s judgment and remand the cause to the trial court for further proceedings.

      . This right is codified under state law in article 33.03 of the Texas Code of Criminal Procedure, which is even more protective of a defendant’s rights than the constitutional provisions because the right to be present cannot be waived before the jury is selected. See Miller, 692 S.W.2d at 91. Article 33.03 provides,
      In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial. Provided, however, that the presence of the defendant shall not be required at the hearing on the motion for new trial in any misdemeanor case.
      Tex.Code Crim. Proc. Ann. art. 33.03 (Vernon 2006).


text:
    Gavin Rayshaurd DUFFEY, Appellant, v. The STATE of Texas, Appellee.
    No. 05-08-00260-CR.
    Court of Appeals of Texas, Dallas.
    Aug. 25, 2009.

      Russell Wilson, Burleson, Pate and Gibson, LLP., Dallas, for Appellant.
    Craig Watkins, Dallas County Dist. Atty., Lisa Smith, Asst. Dist. Atty., for State.
    Before Justices FITZGERALD, LANG, and FILLMORE.
   OPINION

Opinion By Justice FITZGERALD.

A jury convicted Gavin Rayshaurd Duf-fey of aggravated sexual assault of a child under the age of fourteen and assessed his punishment at forty-five years’ imprisonment. In a single appellate issue, Duffey contends the trial court erroneously failed to effectuate the State’s election of a single offense. We affirm the trial court’s judgment.

Background

Duffey and A.B. were part of a close-knit group of family members and friends. Duffey’s sister and A.B.’s mother were best friends. All three families (Duffey’s, his sister’s, and A.B.’s mother’s) had children, who played together often at the families’ homes.

The indictment in this case charged that, on or about July 23, 2000, Duffey did:

intentionally and knowingly cause the contact and penetration of the female sexual organ of [A.B.], a child, who was not then the spouse of defendant, by an object, to-wit: the sexual organ of said defendant, and, at the time of the offense, the child was younger than 14 years of age.

Aside from this single incident, the State notified Duffey it intended to introduce evidence of extraneous offenses amounting to a continuing course of sexually abusive conduct toward A.B. from the time she was seven years old until she was ten or eleven. Duffey filed a pretrial Motion to Require State to Elect Date of Offense. The trial court stated the motion would be addressed when the State rested its case in chief, at which time the State would be expected to make its election; Duffey agreed.

At trial, in response to the prosecutor’s questions, A.B. described the first time she remembered that Duffey “had done something to [her.]” A.B. remembered the incident occurring around her seventh birthday, which was July 23, 2000. She was at the home of Duffey’s sister, celebrating the birthday of another child in the extended group of family and friends. Some of the children stayed when the party was over and spent the night together. In the morning, the children were together upstairs eating breakfast and watching television. Duffey came into the children’s room and sent them all downstairs. Then he called A.B. back upstairs, ostensibly to turn off the television. But when she went back into the children’s room, the television was already off, and Duffey was standing there. He told her to lie down on the floor and to pull her underwear down. He pulled his penis out from his boxer shorts and put it inside her “private part.” A.B. described Duffey’s movement while inside her and then his ejaculation after withdrawing. A.B. was “scared” afterward, and she ran to the bathroom and cried. Duffey told her not to tell anyone, and she did not until much later.

When she had finished answering questions detailing the first incident, A.B. testified, in a brief exchange with the prosecutor, that similar incidents had occurred:

Q. Did this ever happen again?
A. Yes.
Q. Okay. How many times, [A.B.], would you say that his penis went into your private part, your vagina?
A. About four times.
Q. About four times?
A. Yes.

A.B. then went on to describe various oral assaults by Duffey.

After the State rested, the trial court removed the jury from the courtroom, conducted an “[o]ff-the-record discussion,” and then stated, “Let’s get on the record which offense you [the State] are proceeding on.” The State announced it would proceed on the July 23, 2000 incident in which the defendant penetrated A.B.’s sexual organ with his own sexual organ. The prosecutor elaborated, describing the elected offense as:

The first time, the child says, when she was seven, the first incident that she can remember, when she was seven years old. That being the cousins were downstairs. She was asked to come upstairs, to turn off the television where the Defendant was at, where he then shut the door and forced his penis into her vagina.

The judge asked “[a]re we clear on which offense we’re talking about?” Counsel for Duffey replied, “Yes, Your Honor.”

Following another recess, the testimony resumed with Duffey presenting evidence. Duffey presented evidence of alibi, and he denied engaging in the conduct alleged in the indictment.

Ultimately, the jury convicted Duffey and assessed his punishment at forty-five years’ imprisonment. Duffey brings a single issue on appeal, contending the trial court erroneously failed to effectuate the State’s election of a single offense.

The Requirement of an Election

The general rule is that when an indictment alleges just one sexual assault, but more than one assault is shown by the evidence at trial, the State must elect the act on which it will rely for conviction. See O’Neal v. State, 746 S.W.2d 769, 772 (Tex.Crim.App.1988). In this context, an election is “some action that excludes or limits the jury’s consideration of an offense.” Ex parte Goodbread, 967 S.W.2d 859, 861 n. 2 (Tex.Crim.App.1998). The trial court has discretion to require the State to make its election at any time before the State rests its case in chief. O’Neal, 746 S.W.2d at 772. Once the State has rested its case in chief, however, on timely request by the defendant, the trial court must order the State to make its election. Phillips v. State, 193 S.W.3d 904, 912 (Tex.Crim.App.2006) (applying O’Neal, 746 S.W.2d at 772). Following the State’s election of the act on which it will proceed for conviction, the defendant is entitled to an instruction charging the jury to consider only the elected act in deciding guilt and limiting the jury’s consideration of all other unelected acts to the purposes for which they were admitted. Rivera v. State, 233 S.W.3d 403, 406 (Tex.App.-Waco 2007, pet. ref'd) (citing Bates v. State, 165 Tex.Crim. 140, 142, 305 S.W.2d 366, 368 (1957)); see also Goodbread, 967 S.W.2d at 861 n. 2 (election excludes or limits jury’s consideration of offense by instructing to disregard or limiting purpose for which evidence is offered).

In this case, Duffey acknowledges the trial court ordered an election and the State made one. He complains the trial court failed to effectuate the State’s election in the court’s charge by limiting the jury’s consideration to the elected offense in deciding his guilt. Duffey argues that because the jury was not informed of the consequences of the election, in effect no election was made. We agree.

The essence of an election includes both the State’s express selection of the primary offense upon which it will proceed and the trial court’s communication of that selection through the submission of an appropriate written court instruction to the jury. The trial court is charged with discerning the legal effect of the State’s election and explaining that effect to the jury through the medium of the court’s charge. Only when the trial court gives the jury appropriate written instructions is the election formally accomplished within its proper legal context.

In Duffey’s case, the court gave an instruction limiting the jury’s consideration of extraneous offenses to their proper purpose. However, the court did not instruct the jury specifically to limit its consideration of guilt or innocence to the offense elected by the State. Accordingly, the jury was not properly instructed which offense was to be considered under the guilt-innocence inquiry and which offenses were merely extraneous. We conclude the trial court’s failure to give a limiting instruction concerning the State’s election constitutes error.

The Question of Harm

Absent harm to Duffey, the trial court’s error is not reversible. See O’Neal, 746 S.W.2d at 772; see also Tex.R.App. P. 44.2.

Standard of Review for Harm

The parties propose different standards for conducting the harm analysis in this case. Duffey relies on Phillips, which held the trial court’s failure to require the State to elect upon timely request resulted in constitutional error. 193 S.W.3d at 914. Duffey argues the court’s failure to instruct the jury of the State’s election placed him in the same position as if no election had been ordered or made. He contends the error is constitutional in nature and this Court must reverse unless we determine beyond a reasonable doubt that the error did not contribute to his conviction. See id.; see also Tex.R.App. P. 44.2(a).

The State argues the error is mere charge error, and — because Duffey failed to object to the court’s charge — the error should be reviewed for egregious harm. Almanza v. State, 686 S.W.2d 157, 176 (Tex.Crim.App.1985). The State distinguishes Phillips because an election was both ordered and made in Duffey’s case. The State relies instead on Isenhower v. State, 261 S.W.3d 168 (Tex.App.-Houston [14th Dist.] 2008, no pet.). In that case the trial court granted the defendant’s request for an election, and the State timely made its election, but the trial court failed to instruct the jury on the election. Id. at 173. Although finding error in that failure to instruct, Isenhower stressed that an election was made in the trial court. Id. at 175. Isenhower concluded that authorities relied upon by the appellant were inappo-site, because in those cases the defendant’s request for an election by the State was denied, whereas in Isenhower the request was granted. See id. at 175 (distinguishing Dixon v. State, 201 S.W.3d 731 (Tex.Crim.App.2006); Phillips, 193 S.W.3d 904; Fleck v. State, 201 S.W.3d 268 (Tex.App.Houston [14th Dist.] 2006, no pet.)). Isenhower, thus, rejected the Phillips constitutional harm standard as inapplicable. Id.

Because we have concluded the trial court’s failure to instruct the jury concerning the State’s election placed Duffey in the same position as if no election had been made, we believe the Phillips constitutional harm standard is applicable in this ease. Phillips sets forth four fundamental principles or purposes that are served by an election and its accompanying procedures:

{1] to protect the accused from the introduction of extraneous evidence; [2] to minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty; [3] to ensure unanimous verdicts; that is, all of the jurors agreeing that one specific incident, which constituted the offense charged in the indictment, occurred; and [4] to give the defendant notice of the particular offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend.

Phillips, 193 S.W.3d at 910 (footnotes and citations omitted). Whether expressly or implicitly, these principles inform a court’s analysis of many issues related to an election. On the harm-standard issue, Phillips concluded the third and fourth of these principles — unanimity and notice— implicate fundamental constitutional principles and thus require the stringent constitutional standard of review. Id. at 913-14. Although only two of the four principles were deemed constitutional in import, Phillips concluded broadly that “the failure to require the State to elect upon timely request results in constitutional error.” Id. at 914.

In Isenhower and in Duffey’s case, the State’s timely elections obviated concerns about notice to the defendant. But we have no reason to believe the court of criminal appeals would view the standard of review differently here merely because the defendant was notified of the election. The Phillips directive to apply a constitutional standard of review for harm in election cases was not expressly or implicitly limited to cases that address both unanimity and notice. See Dixon, 201 S.W.3d at 734-36 (applying constitutional standard in harm analysis under all four principles). Instead, the Phillips holding is a broad one; we are not free to reject its dictates. We therefore decline to follow Isenhower. We will reverse the trial court’s judgment unless we determine beyond a reasonable doubt that the error did not contribute to Duffey’s conviction. See id.; see also Tex. R.App. P. 44.2(a).

Presence of Jury For Election

Initially, the State raises a procedural matter concerning the issue of harm: it contends the trial court’s error is harmless because the jury may have been present at the time the State made its election. The record states clearly that the jury was excused after the State rested. An “off-the-record discussion” took place, following which the State made its election on the record. The record then indicates “there was a short break in the proceedings,” followed immediately by the defense calling its first witness. The jury must have returned to the courtroom before testimony resumed, but it is unclear whether that happened during the off-the-record discussion, during the short break in the proceedings, or at some other time.

The presence or absence of the jury for the election, however, is not dispositive. Even if the jury had been present, the State’s announcement of its election was not the equivalent of a written court instruction telling the jury to limit its consideration to the elected act when determining guilt or innocence. We do not require the jury to discern the legal effect of the State’s election. As we discussed above, such discernment is the proper function of the trial court. We conclude the presence or absence of the jury during the State’s election in this case did not affect the trial court’s failure to instruct the jury properly on the legal effect of that election.

Harm Under the Phillips Principles

Duffey asserts none of the four Phillips principles were served in this case. We address the four Phillips principles in turn.

Admission and Use of Extraneous Evidence

Duffey’s primary argument is that — given the trial court’s failure to instruct the jury on the elected offense — the State was able to use the cumulative effect of testimony concerning extraneous offenses to obtain the conviction. Duffey stresses the “graphic and explicit” nature of the offenses A.B. described, especially the oral assaults which were clearly extraneous offenses. He complains the State’s closing argument encouraged the jury to convict based on the pattern of offenses rather than on the single elected offense. We understand this argument to implicate both the first and second Phillips principles, i.e., admission of extraneous evidence and using evidence of multiple offenses to obtain a conviction without sufficient proof of the single charged offense.

Duffey’s arguments concerning the admission of the extraneous offenses must fail. Initially, Duffey did not object to the evidence of these offenses. Tex.R.App. P. 33.1(a)(1) (prerequisite to appellate review is timely objection in trial court). Moreover, evidence of other acts committed by Duffey against A.B. was admissible to show the state of mind of both the defendant and the complainant and to show their previous and subsequent relationship. See Tex.Code Crim. Proc. Ann. art. 38.37, § 2 (Vernon Supp. 2008); see also Dixon, 201 S.W.3d at 731 (“appellant was not entitled to be protected from the admission of evidence of extraneous sexual offenses committed by him against the child”). And as to the use of the evidence of extraneous offenses, the trial court’s instruction properly limited the jury’s consideration of the extraneous offenses to their statutory purposes. The limiting instruction was certainly effective as to the oral assaults that Duffey finds so egregious because the indictment and charge both referred only to an act of vaginal penetration.

Conviction Without Proof Beyond Reasonable Doubt

The second purpose underlying election is to minimize the risk of a jury choosing to convict because of evidence of multiple crimes, even though the offense at issue was not proved beyond a reasonable doubt. Phillips, 193 S.W.3d at 910. We conclude this record reflects no such risk. The State presented ample evidence that Duf-fey intentionally caused the contact and penetration of A.B.’s sexual organ with his own when A.B. was younger than fourteen years old. A.B.’s testimony of those facts was straightforward, and her testimony is sufficient to uphold Duffey’s conviction. See Tex.Code Crim. Proc. art. 38.07 (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). Moreover, the evidence of all of the sexual assaults came from A.B., either directly or through her outcry witness; the child was either credible or she was not. See Dixon, 201 S.W.3d at 735. The record does not support Duffey’s argument that evidence of multiple offenses could have led to a verdict that was based on less than proof of guilt beyond a reasonable doubt.

Requirement of Unanimous Verdict

Next we ask whether, absent a proper instruction, we can be sure the jury verdict was unanimously directed at the single offense elected. We perceive no risk that the jury could have reached a non-unanimous verdict in this case. The jury charge mirrored the indictment. Both referred to the single act of vaginal penetration that occurred on or about the 23rd of July 2000. Although the jury was instructed that the State did not need to prove the exact date of the offense, the date given coincided with AB.’s seventh birthday, and she testified the first incident occurred around that birthday. A.B. did not relate a date associated with any other incident of sexual contact. In fact, A.B. did not relate a detailed account of any other specific incident. Her testimony describing the elected incident extends through ten pages of the trial transcript. The record shows A.B.’s testimony that vaginal penetration occurred about three or four more times was both brief and general in nature. The issue for the jury’s determination was limited to vaginal penetration, so none of A.B.’s descriptions of oral assaults could have been considered by the jury in answering the question. Duffey’s defense was limited to an alibi for the elected offense. Both closing arguments focused almost exclusively on the elected offense. Indeed, in his closing argument, Duffey’s counsel stated:

But, you know, [Duffey’s] testimony doesn’t stand alone. His testimony is corroborated by other people, because the whole crux of this allegation is this birthday party and what A.B. says happened the next morning. Okay. And [Duffey] — not only [Duffey], but his sister — and by the way the party was at her house — and his wife also corroborated the fact that he didn’t even have a car. You know, he got a ride home, and then he never came back the next morning. That’s when she said it happened is the next morning. She’s upstairs, and all of this stuff happens, and all these children are downstairs. (Emphasis added.)

There is no question the jury was properly focused on this single detailed allegation of vaginal penetration.

Notice to Defendant

Because of the constitutional significance of the issue of notice to the defendant, we note that due process concerns are not implicated by the error made by this trial court. Duffey acknowledged in open court he was not entitled to receive notice of the election until the State rested its case in chief. He received timely notice of the State’s election after the State rested. His counsel expressly acknowledged understanding the election when it was made and did not indicate his anticipated defense was prejudiced or adversely affected in any way. Moreover, Duffey’s defense was directed specifically toward the elected offense: Duffey and each of his witnesses testified they remembered the birthday party at his sister’s house, but Duffey did not stay the night there and did not return the next morning.

Conclusion

The trial court erred by failing to instruct the jury concerning the elected offense in this case. However, the record establishes beyond a reasonable doubt that the trial court’s error in this case did not contribute to Duffey’s conviction. We overrule Duffey’s single issue, and we affirm the trial court’s judgment.

      . Pearle Robinson testified as the outcry witness at trial. She stated that in September 2005, A.B. told her of an incident involving vaginal penetration by Duffey. A.B. told Robinson that incident had occurred "about three months” before the outcry. No other reference was made to this incident in the evidence or in arguments, and Duffey does not refer to it or rely upon it on appeal.