John Wayne Williams, Sr. v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-22-00179-CR
No. 10-22-00180-CR

JOHN WAYNE WILLIAMS, SR.,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 82nd District Court
Falls County, Texas
Trial Court Nos. 10207 & 10206

MEMORANDUM OPINION

John Wayne Williams, Sr., was convicted of two offenses of aggravated sexual

assault of a child, see TEX. PENAL CODE § 22.021(a)(1)(B)(ii),(2)(B) and § 22.021(a)(1)(B)(iii),

(2)(B), respectively, and sentenced to life in prison for both convictions. In the same two

issues in both appeals, Williams contends the trial court erred in failing to grant

Williams’s requests, before and after the State rested its case-in-chief, to require the State

to elect which acts of abuse it would rely on for its convictions. Because the trial court
either did not err or Williams was not harmed by the error, the trial court’s judgments

are affirmed.

BACKGROUND

Williams was charged with one act of aggravated sexual assault of a child by

causing the penetration of the mouth of L.W., a child under 14 years of age, by the sexual

organ of Williams (oral sex on Williams) (10-22-00179-CR) and one act of aggravated

sexual assault of a child by causing penetration of the sexual organ of L.W., a child under

14 years of age, by Williams’s tongue (oral sex on L.W.) (10-22-00180-CR).

L.W. turned 8 years old on April 12. By early May, she made an outcry of sexual

abuse to her school bus driver. 1 In response to this outcry, L.W. was taken to the Waco

Child Advocacy Center on May 10. There, L.W. told a forensic interviewer, that Williams

had licked L.W.’s vagina. Six days later, L.W. told an examining doctor that, in addition

to Williams licking L.W. “a lot of times,” Williams told L.W. to put his penis in her mouth

“a lot of times” and that L.W. complied with Williams’s instruction on more than one

occasion. L.W. told the doctor that the abuse happened when she was 8 years old, but

did not know exactly when. L.W. also said that she thought the last time Williams

“touched her middle spot” was in April, but was not sure.

By the time of the trial, L.W. was 12 years old. She testified that Williams licked

her vagina and made her put his penis in her mouth. When asked about who she may

have talked to about what had happened to her, L.W. stated that because of the years that

1
The bus driver, although designated as an outcry witness, was not called to testify.

Williams v. State Page 2
had passed, she was unable to recall “all the dates and details.” L.W. stated she did not

tell anyone about the “first time anything like this happened” because she did not want

her “mom to get worried way too much.”

During the trial, Williams requested, on three separate occasions, an election by

the State of the act for each indictment on which it was relying for a conviction. Those

requests were denied.

ELECTION OF OFFENSES

In the same two issues for each appeal, Williams contends the trial court erred in

failing to grant Williams an in-trial election of offenses and in failing to grant Williams

an election of offenses after all the parties had rested. 2

Generally, when one particular act of sexual assault is alleged in the indictment

and more than one incident of that same act of sexual assault is shown by the evidence,

as is the case here, "the State must elect the act upon which it would rely for conviction."

Owings v. State, 541 S.W.3d 144, 150 (Tex. Crim. App. 2017), quoting O'Neal v. State, 746

S.W.2d 769, 771 (Tex. Crim. App. 1988). See Garcia v. State, 614 S.W.2d 749, 753 (Tex. Crim.

App. 2019). Before the State rests, the trial court has discretion in directing the State to

make an election. Garcia, 614 S.W.2d at 753; O'Neal, 746 S.W.2d at 771. See Porter v. State,

298 S.W.3d 694 (Tex. App.—Waco 2009, pet. ref'd). But once the State rests its case in

chief, upon a timely request by the defense, the trial court must order the State to make

an election. Owings, 541 S.W.3d at 150; O'Neal, 746 S.W.2d at 771. See Phillips v. State, 193

2
Even after being notified that its briefs had not been filed and warned that if briefs were not filed the cases
would be submitted without its briefs, the State did not file a brief in either appellate case.
Williams v. State Page 3
S.W.3d 904, 910 (Tex. Crim. App. 2006) (reaffirming O'Neal); Dixon v. State, 201 S.W.3d

731, 733-34 (Tex. Crim. App. 2006).

Election During Case-in-Chief

Williams first complains that the trial court erred in denying his two requests for

an election in both cases during the State’s case-in-chief. Williams first asked for an

election after the completion of the testimony of the State’s first two witnesses, Dr. Soo

Battle, a board-certified pediatrician working at the Advocacy Center as a medical

advisor and a child sexual abuse examiner, and Dr. William Lee Carter, a forensic

psychologist. Battle spoke with L.W. about what had happened and physically examined

L.W. Carter did not see L.W. as a patient and did not testify about any of the acts L.W.

said happened to her. The second time William asked for an election was after the

completion of the testimony of K.W. and L.W. K.W. is L.W.’s cousin who heard a

conversation between two other cousins. The substance of the conversation was not

made known to the jury.

We have said that to compel an election before the State rests, “the State’s evidence

must show a discrete, identifiable occurrence which fits within the allegations of the

indictment.” Porter v. State, 298 S.W.3d 694, 696 (Tex. App.—Waco 2009, pet. ref’d).

“Generally, such showing will include a chronological component (e.g., the complainant

may testify that the defendant assaulted him during the Thanksgiving holidays).” Id.

—10-22-00179-CR

In reviewing the testimony prior to both election requests, we found no discrete

identifiable occurrence regarding the act of Williams forcing L.W. to perform oral sex on

Williams v. State Page 4
Williams. Dr. Battle and L.W. both testified that Williams made L.W. perform oral sex

on him on more than one occasion. There was no testimony isolating any particular

instance of oral sex performed on Williams. Thus, we cannot say the trial court abused

its discretion by not requiring the State to make an election at either time prior to resting

its case.

—10-22-00180-CR

In reviewing the same testimony but regarding Williams’s act of performing oral

sex on L.W., a discrete identifiable occurrence was shown. L.W. recounted an instance

when her brother, J.W., walked into the garage, where all the acts of sexual abuse

occurred, while Williams was performing an act of oral sex on L.W. She could see J.W.

as he entered the garage and told Williams to stop because someone was coming.

Although there was no chronological component as generally required, we find this

instance to be sufficiently isolated to require the State to make an election before resting.

Accordingly, the trial court abused its discretion by failing to require the State to make

an election as to this offense before the State rested.

Election after State Rests

Williams next complains that the trial court erred in denying his request for an

election in both cases after the parties had rested.

As we previously stated, once the State rests its case-in-chief, upon a timely request

by the defense, the trial court must order the State to make an election. Owings v. State,

541 S.W.3d 144, 150 (Tex. Crim. App. 2017); O'Neal v. State, 746 S.W.2d 769, 771 (Tex.

Crim. App. 1998. See Phillips v. State, 193 S.W.3d 904, 910 (Tex. Crim. App. 2006)

Williams v. State Page 5
(reaffirming O'Neal); Dixon v. State, 201 S.W.3d 731, 733-34 (Tex. Crim. App. 2006). But

Williams did not request an election at the close of the State's case. Instead, Williams

waited to move for an election until the close of all the evidence. The question, then, is

whether Williams’s request for election was timely, as required by the rule as announced

in O'Neal. See Phillips, 193 S.W.3d at 912; O'Neal, 746 S.W.2d at 771.

Certainly, if Williams had asked for an election at the close of the State's evidence,

the trial court would have been obligated to require the State to elect at that time. But,

because he waited until the close of all the evidence, Williams was not entitled to an

election at the close of the State's evidence. See Phillips, 193 S.W.3d at 912. Nevertheless,

he was still entitled to a unanimous verdict, and he preserved his right to a unanimous

verdict by calling for an election at the close of all the evidence. Id. Therefore, Williams's

request was timely insofar as he was entitled to a unanimous jury verdict, and the trial

court had an obligation to require the State to elect at that point in time. Id.

HARM ANALYSIS

We must now decide whether the error harmed Williams, i.e. whether it

contributed to Williams’s conviction or punishment. See TEX. R. APP. P. 44.2(a); Dixon v.

State, 201 S.W.3d 731, 734 (Tex. Crim. App. 2006); see also Phillips, 193 S.W.3d at 913-14.

Harm is determined by analyzing the four purposes of the election rule: (1) to protect the

accused from the introduction of extraneous offenses; (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

Williams v. State Page 6
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. Owings v. State, 541

S.W.3d 144, 150-51 (Tex. Crim. App. 2017). See Phillips, 193 S.W.3d at 910.

Because Williams is entitled to a unanimous verdict in case number 10-22-00179-

CR, we will join that case number in the harm analysis when we analyze the unanimous

verdict purpose.

—10-22-00180-CV (oral sex on L.W.)

Protection from Extraneous Offenses

Evidence of other crimes, wrongs, or acts committed by the defendant against the

child victim is admissible for purposes of showing: (1) the state of mind of the defendant

and the child; and (2) the previous and subsequent relationship between the defendant

and the child. TEX. CODE CRIM. PROC. art. 38.37. Because evidence about the other

offenses was admissible, Williams was not entitled to protection from their introduction

as evidence of extraneous offenses involving L.W. See id.; see also Dixon v. State, 201

S.W.3d 731, 734-35 (Tex. Crim. App. 2006).

Risk of Conviction

We see no risk that the jury found Williams guilty of an offense other than the one

for which he was charged that was not proven to its satisfaction beyond a reasonable

doubt. As the Court in Dixon said, "[t]his case is not concerned with evidence of different

activities from different sources that a jury might perceive to 'add up' to the defendant

being guilty even though no individual offense was proven beyond a reasonable doubt."

Williams v. State Page 7
Dixon, 201 S.W.3d at 735. Here, L.W. was the only source of the evidence of the offense

charged in 10-23-00180-CR and committed by Williams, and she provided a sequence of

events that occurred for the offense and stated that these incidents occurred “a lot of

times” in the garage at Williams’s house when L.W. was 8 years old. L.W. was 8 years

old only for a short time before she made her outcry. She was either credible or she was

not and the number of times that each offense occurred does not impact her credibility.

See id. Thus, we cannot say that the jury convicted Williams for any reason other than the

offense was proved beyond a reasonable doubt.

Notice of Particular Offense

We also cannot say that Williams was deprived of adequate notice of, or an

opportunity to defend against, the instances due to the trial court’s error. All of the

incidents were presented with equal specificity. With the exception that J.W. walked in

on one of the incidents of Williams performing oral sex on L.W., and that those incidents

occurred in a few different locations in the garage, there was no substantive distinction

between L.W.’s account of each instance. See Dixon, 201 S.W.3d at 736; Jackson v. State,

2008 Tex. App. Lexis 6715 *17 (Tex. App.—Waco, Sept. 3, 2008, pet. ref’d) (not designated

for publication). Further, Williams’s defensive strategy was to attack the credibility of

the State’s witnesses, especially L.W., and question the State’s motives in the presentation

of its case and the witness’s motives for testifying. Thus, we are not convinced that if the

trial court had put the State to its election at the appropriate time, Williams’s defensive

strategy would have been meaningfully different. See Garcia v. State, 614 S.W.3d 749, 758-

59 (Tex. Crim. App. 2019).

Williams v. State Page 8
—Both Appellate Cases

Unanimous Verdict

Likewise, we are not convinced the trial court’s failure to require an election by

the State resulted in a non-unanimous verdict. There is no basis in the record for the jury

to believe that one incident occurred and another did not. Thus, it is unlikely there was

any danger that some jurors might have believed that one incident occurred and another

or others did not. Further, although there were two notes sent out by the jurors, neither

indicated the jury was not unanimous about which incident was the charged offense. We

find, therefore, that the jurors would not have convicted Williams without unanimously

believing that he committed the offenses charged and described by L.W. Thus, we are

satisfied that, despite the trial court's failure to require an election by the State, there is

no significant risk of a non-unanimous verdict for either charge of aggravated sexual

assault. See Owings v. State, 541 S.W.3d 144, 152-53 (Tex. Crim. App. 2017).

Conclusion

Based on our review of the record, we find the trial court’s failure to require the

State to make an election did not contribute to Williams’s conviction or punishment. See

TEX. R. APP. P. 44.2(a). Thus, Williams was not harmed by the trial court’s error, and his

issues are overruled.

CONCLUSION

Having overruled Williams’s issues in each appeal, we affirm the trial court’s

judgments.

TOM GRAY
Chief Justice

Williams v. State Page 9
Before Chief Justice Gray,
Justice Johnson,* and
Justice Smith
*(Justice Johnson concurs only in the judgment.)
Affirmed
Opinion delivered and filed April 25, 2024
Do not publish
[CRPM]

Williams v. State Page 10