In our "on or about" jurisprudence, we have recognized the impracticality of requiring the indictment to specify the exact time a crime has occurred. For some crimes, pinpointing the exact year may be impractical, until evidence is presented at trial. ⁽¹⁾ But multiple violations of the same statute can occur even during the same day. ⁽²⁾ The exact time of the crime, and also the exact location, are really evidentiary facts that the State should not be required to allege with exactness in the indictment. This leeway regarding evidentiary facts, however, creates the issue of what to do with multiple offenses that conform to the same indictment (as indicted or as a lesser included). Two separate crimes that conform to the same indictment are still two separate crimes, but the question becomes, if evidence of two or more crimes conforming to the indictment is presented at trial, which crime is the crime for which the defendant was indicted?

To handle this issue, we have developed a jurisprudence that incorporates election and addresses double jeopardy concerns. When the State presents evidence of a criminal act that conforms to the indictment, it has impliedly adopted that act as covered by the indictment. When multiple criminal acts that conform to the indictment are presented by the State, all such acts are impliedly adopted, unless the State makes an election specifying which of the multiple criminal acts is the one charged. ⁽³⁾ This "election" rule avoids the difficulty of trying to figure out which offense the State intended to be the charged offense when the State has failed to make its intentions known. So, if the State presents evidence of multiple criminal acts conforming to the indictment, and no election is made, then all of the acts are considered as the charged offense. ⁽⁴⁾ This means evidence of all of them is admissible and can be used to support the conviction, but it also means that they are all jeopardy barred in any future prosecution. And the State will be able to get only the number of convictions authorized by the indictment. ⁽⁵⁾ For instance, if one sexual assault offense was charged, and evidence of five sexual assaults conforming to the indictment was admitted - and no election took place - that evidence would be evidence of the charged offense and would support the conviction, but only one conviction would be allowed, and any future prosecution would be jeopardy barred for all five of the sexual assaults. Both the State and the defendant stand to benefit from that situation. The State would gain an increased likelihood of obtaining a conviction and having it upheld on appeal while the defendant would reduce his exposure to punishment by reducing the number of convictions for his multiple criminal acts.

But either party has the ability to avoid the scenario in which a conviction is supported by evidence of multiple criminal acts. The State can choose to elect, or the defendant can choose to require the State to elect. ⁽⁶⁾ In that event, the State would specify which criminal act constitutes the offense for which the defendant was indicted, and the remaining criminal acts would be extraneous offenses. The latter offenses could not be considered the indicted offense for the purposes of conducting a sufficiency review on appeal. On the other hand, the State would preserve its ability to prosecute those latter crimes in the future.

But what happens if the defendant introduces evidence of a separate criminal act that conforms to the indictment? Nothing. Because the State has not introduced the evidence, it has not impliedly adopted this act as covered by the indictment. The defendant cannot foist upon the State a crime the State did not intend to prosecute. However, the State can, if it so desires, adopt the crime introduced by the defendant as a covered offense. That is what happened in Rankin. In argument, the State told the jury that it could convict based upon the evidence of the crime the defendant had presented. ⁽⁷⁾ So in Rankin the State adopted the crime in question. Nevertheless, the defendant was not without a remedy. He could have required the State to elect, but he did not. ⁽⁸⁾

In this case the State did not adopt, as covered by the indictment, the criminal act about which the defendant introduced evidence. Appellant's attempt to obtain a lesser included offense instruction based upon that crime was an improper attempt to foist upon the State an offense the State had not chosen to prosecute. Even if the Court were to require the State to make an election regarding a crime that the State never presented to the jury to avoid its inclusion, such a requirement was met here. The State actively opposed including the defendant's proffered crime within the indictment's coverage by objecting to appellant's requested lesser included offense. The State's objection was sufficient to constitute an election if one is thought to be required. ⁽⁹⁾

Because the State never adopted, as covered by the indictment, appellant's proffered lesser included offense, appellant was not entitled to an instruction on it. With these comments, I join the opinion of the Court.

KELLER, Presiding Judge

Date filed: October 27, 2004

Publish

1. See Sledge v. State, 953 S.W.2d 253, 255-256 (Tex. Crim. App. 1997).

2. See Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996).

3. See Ex parte Goodbread, 967 S.W.2d 859, 860-861 (Tex. Crim. App. 1998).

4. Id.

5. Id.

6. Id.; Espinoza v. State, 638 S.W.2d 479, 480 (Tex. Crim. App. 1982).

7. Rankin, 953 S.W.2d at 741.

8. Id. at 743 (Meyers J., concurring).

9. Goodbread, 967 S.W.2d at 861 n. 2.