Opinion issued August 30, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00645-CR
———————————
EDWIN EUGENE VERNON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case No. 14CR2726
OPINION
A jury convicted appellant Edwin Eugene Vernon, Jr. of indecency with a
child, and the trial court sentenced him to 12 years in prison. See TEX. PENAL CODE
§ 21.11. On appeal, he challenges the sufficiency of the evidence to support his
conviction, and he claims that his lawyer rendered ineffective assistance. He also
suggests other errors that were not preserved at the trial: prosecutorial misconduct
that denied him a fair trial and a jury charge that failed to require a unanimous
verdict.
We conclude that the complainant’s testimony established the elements of
the offense and was sufficient to support Vernon’s conviction. The record includes
no evidence to explain trial counsel’s actions which have been challenged on
appeal, and thus her performance has not been shown to be constitutionally
deficient. Finally, no egregious error has been shown based on the prosecutor’s
conduct or the jury charge. Accordingly, we affirm.
Background
To protect the complainant’s identity, we use the same alias used in the
State’s appellate brief. More generally, this opinion has been written deliberately to
avoid, to the extent possible, unnecessarily revealing the identities of other
witnesses involved in sexual encounters with the appellant.
At the age of ten, complainant “Amanda” confided in her younger cousin
that she had been sexually abused by appellant Edwin Eugene Vernon, Jr.
Amanda’s aunt, T.K., was planning to take the two girls to visit the home of some
relatives, where Vernon also lived. Amanda was “scared . . . that something would
happen” because Vernon previously had touched her in a sexually inappropriate
way. T.K. subsequently spoke with Amanda about what Vernon had done. Amanda
2
reported that Vernon had called her his “dirty little slut” while touching her
“breasts, bottom, and her privates.”
T.K. called the police. Following an investigation, a grand jury indicted
Vernon for indecency with a child. The indictment alleged that Vernon
“intentionally or knowingly” touched the genitals of Amanda, a child under 17
years of age, “with the intent to arouse or gratify [his] sexual desire.”
Deputy M. Hunt testified at trial. He had responded to T.K.’s home on the
day she learned about what Vernon had done to her niece. T.K. told Deputy Hunt
about Amanda’s outcry. Deputy Hunt saw Amanda at the home and observed that
she was “upset and crying.” He did not speak with Amanda that day, but based on
the information he received from T.K., he contacted the Criminal Investigation
Division’s on-call detective, Detective G. Hayes.
Detective Hayes contacted Amanda’s father to schedule a forensic interview
of the child. He also personally interviewed T.K. as an outcry witness. Detective
Hayes contacted several possible witnesses, and he interviewed Amanda’s
grandmother and another family member. Finally, Detective Hayes interviewed
Vernon, who did not admit to any wrongdoing.
C. McCarty, a forensic interviewer for the Child Advocacy Center of
Galveston County, interviewed Amanda. McCarty testified that Amanda was able
to answer all the questions asked of her during the interview.
3
At trial, Amanda testified that Vernon had touched her “probably” more than
20 times over the course of seven years. Vernon had last touched her just a few
days before her outcry, while she was at his home. He started “tickling” her, then
he touched her “top” area and her “private” area under her clothes. Vernon also
asked her if she wanted to be his “little slut.” Amanda did not respond to Vernon
because she was “confused” and “didn’t know what to say.” She also was “scared”
because no one else was there and she “didn’t know what was going to happen.”
The defense called several witnesses at trial, including Deputy Hunt and
Detective Hayes, Vernon’s girlfriend, and several of his relatives. Vernon’s mother
and girlfriend each testified that they had not seen him alone with any child during
family gatherings, and that they had never seen him touch any child in an
inappropriate way. Another relative also testified that she had never seen Vernon
alone with any children, including Amanda, in the past ten to fifteen years. She had
heard Vernon call his girlfriend his “dirty little slut” in front of the children and she
told him that he “shouldn’t say that around young ears.”
Vernon also testified in his own defense. He stated that he had never been
alone with the children. He explained that he “would never allow” himself to be
alone with children and that he “tried to protect” himself because he feared “stuff
like this happening.” Vernon admitted that he had tickled Amanda’s shoulders and
knees, but he insisted that he had never touched or tickled her on her breasts,
4
buttocks, or private parts. He testified that he would jokingly call his girlfriend his
“dirty little slut,” and that he might have inadvertently said it in earshot of the
children, but he denied ever using the term with Amanda or any of his cousins,
nieces or nephew, or with his neighbors.
The jury found Vernon guilty of indecency with a child, and the trial court
sentenced him to 12 years in prison. Vernon timely filed a motion for new trial,
arguing only that statements made by the prosecutor violated his due-process
rights. The motion did not claim ineffective assistance of counsel as a ground upon
which a new trial should be granted. On the same day the motion for new trial was
filed, Vernon also filed a request for a hearing on the motion. A hearing on the
motion was never set, and the motion was overruled by operation of law. This
appeal followed.
Analysis
Vernon challenges the sufficiency of the evidence to support his conviction
and the effectiveness of his trial counsel. He also contends that he suffered
egregious harm as a result of misconduct by the prosecutor and a jury charge that
did not require a unanimous verdict with respect to a specific charged incident.
I. Sufficiency of the evidence
Every criminal conviction must be supported by legally sufficient evidence
as to each element of the offense that the State is required to prove beyond a
5
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315,
99 S. Ct. 2781, 2787
(1979); Adames v. State,
353 S.W.3d 854, 859 (Tex. Crim. App. 2011). To
determine whether this standard has been met, we review all the evidence in the
light most favorable to the verdict and decide whether a rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson,
443 U.S. at 319; Brooks v. State,
323 S.W.3d 893, 902 (Tex. Crim. App.
2010) (plurality op.). The evidence may be circumstantial or direct, and we permit
juries to draw multiple reasonable inferences from the evidence presented at trial.
Merritt v. State,
368 S.W.3d 516, 525 (Tex. Crim. App. 2012). The jury is the sole
judge of witness credibility and of the weight given to any evidence presented.
Id.
A jury may believe or disbelieve some or all of a witness’s testimony. Penagraph
v. State,
623 S.W.2d 341, 343 (Tex. Crim. App. 1981); Davis v. State,
177 S.W.3d
355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The testimony of a single
eyewitness is sufficient to support a conviction. Aguilar v. State,
468 S.W.2d 75,
77 (Tex. Crim. App. 1971); Davis,
177 S.W.3d at 359. We presume that the jury
resolved any conflicting inferences in favor of the verdict and defer to that
determination. Merritt, 368 S.W.3d at 525–26.
As relevant to this case, a person commits the offense of indecency with a
child if he engages in sexual contact with a child younger than 17 years of age.
TEX. PENAL CODE § 21.11(a)(1). “Sexual contact” includes “any touching by a
6
person, including touching through clothing, of the anus, breast, or any part of the
genitals of a child.” Id. § 21.11(c)(1).
Vernon asserts that no rational factfinder could believe beyond a reasonable
doubt that Amanda had been touched illegally on any one occasion because she
testified that she was “confused” about when—and in whose presence—the
offenses occurred. Vernon argues that the evidence was insufficient to support his
conviction because reasonable doubt was “tacitly conceded” by the State when it
urged the jury not to get “hung up” on which date the offense might have been
committed. He contends that a note from the jury asking whether there “were other
witnesses to the touching and the frequency to the touching with witnesses
present” indicated the jury’s uncertainty.
The testimony referenced in Vernon’s brief is at least equally susceptible of
being understood as Amanda’s confusion about the question she was asked, rather
than confusion about the details of the abuse. In any case, we defer to the jury on
questions of witness credibility, and we presume that they resolved any confusion
in favor of the verdict. See Merritt, 368 S.W.3d at 525–26.
Amanda was 12 years old at the time of trial. She testified that two or three
days before she confided in her cousin about the abuse, Vernon touched her
“breasts” and “butt,” and he touched her “privates” under her clothes. Viewing the
evidence in the light most favorable to the verdict, this was sufficient evidence for
7
the jury to have found, beyond a reasonable doubt, that Vernon was guilty of
engaging in sexual contact with a child younger than 17 years of age. See TEX.
PENAL CODE § 21.11(a)(1), (c)(1); Lee v. State, 176 S.W.3d 452, 457 (Tex. App.—
Houston [1st Dist.] 2004), aff’d,
206 S.W.3d 620 (Tex. Crim. App. 2006).
Vernon requests that this court abandon its precedent and conduct a distinct
factual-sufficiency review that would ignore the rule that jurors are the exclusive
judge of witness credibility. The Court of Criminal Appeals in Brooks v. State
directed intermediate courts to apply the Jackson standard of review as the sole
standard for both legal and factual sufficiency challenges. 323 S.W.3d at 902;
Ervin v. State,
331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet.
ref’d). We therefore overrule Vernon’s challenges to the sufficiency of the
evidence.
II. Ineffective assistance of counsel
Vernon argues that he was denied effective assistance of counsel because his
trial lawyer (1) opened the door to damaging testimony that otherwise would have
been inadmissible, (2) elicited damaging testimony from a witness, (3) failed to
object to certain testimony and arguments, and (4) failed to cross-examine Amanda
about prior false allegations.
A criminal defendant has the right to counsel to protect the fundamental
right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684,
104 S. Ct. 2052,
8
2063 (1984). In this context, “a fair trial is one in which evidence subject to
adversarial testing is presented to an impartial tribunal for resolution of issues
defined in advance of the proceeding.” Id. at 685,
104 S. Ct. at 2063. Therefore,
the “right to counsel is the right to the effective assistance of counsel.”
Id. at 686,
104 S. Ct. at 2063 (quoting McMann v. Richardson,
397 U.S. 759, 771 n.14,
90 S.
Ct. 1441, 1449 n.14 (1970)). This right does not guarantee “errorless or perfect”
representation by counsel. Robertson v. State,
187 S.W.3d 475, 483 (Tex. Crim.
App. 2006). Rather, claims of ineffectiveness are judged by whether “counsel’s
conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Strickland,
466 U.S. at
686,
104 S. Ct. at 2064.
Ineffective-assistance claims are governed by a two-part test: (1) whether the
counsel’s performance was deficient, i.e., did counsel make errors so serious that
he or she was not functioning as the “counsel” guaranteed by the Sixth
Amendment; and if so, (2) whether that deficient performance prejudiced the
defense, i.e., is there a reasonable probability that, but for the deficiency, the result
of the proceeding would have been different. Strickland, 466 U.S. at 687,
104 S.
Ct. at 2064. A defendant claiming ineffective assistance of counsel has the burden
of showing by a preponderance of the evidence that his attorney failed to provide
9
constitutionally adequate representation. Bone v. State, 77 S.W.3d 828, 836 (Tex.
Crim. App. 2002).
The adequacy of counsel’s performance is judged against what is reasonable
under prevailing professional norms. Strickland, 466 U.S. at 688,
104 S. Ct. at
2065. There is a strong presumption that a trial counsel’s conduct falls “within the
wide range of reasonable professional assistance,” and that counsel’s decisions
were motivated by sound trial strategy.
Id. at 689; see Robertson,
187 S.W.3d at
483. Unless the record demonstrates that counsel’s performance fell below an
objective standard of reasonableness as a matter of law, and that no reasonable trial
strategy could justify trial counsel’s acts or omissions, regardless of her subjective
reasoning, we cannot determine ineffectiveness on direct appeal. Lopez v. State,
343 S.W.3d 137, 143 (Tex. Crim. App. 2011). A successful challenge of
ineffectiveness must be firmly founded in the record, which “must affirmatively
demonstrate the alleged ineffectiveness.” Thompson v. State,
9 S.W.3d 808, 813
(Tex. Crim. App. 1999). In reviewing an ineffective-assistance claim, the appellate
court looks to the “totality of the representation and the particular circumstances of
each case.”
Id.
Vernon asserts that his trial counsel was deficient because she opened the
door to otherwise inadmissible evidence of extraneous acts, specifically the
allegation that a relative performed oral sex on him when both of them were
10
children. Vernon’s trial counsel called the relative as a reputation witness, and she
asked the witness if she had ever thought Vernon had misbehaved with a child.
The witness, who had known Vernon for many years, stated that she had not.
During a bench conference immediately following the direct examination of this
witness, the State asserted that the witness had admitted to prosecutors before trial
that Vernon had made her perform oral sex on him when they were children. The
State argued that the statement elicited on direct examination—that the witness had
never known Vernon to misbehave with a child—“opened a door” to questioning
her about the oral-sex incident. The court ruled in favor of the State. Defense
counsel disagreed with the court’s ruling, but the State was nevertheless permitted
to question the witness about her previous statements. During the cross-
examination, the witness denied that she performed oral sex on Vernon when they
were children or that she ever had told prosecutors that she had.
The record indicates that counsel’s question about whether the witness had
ever known Vernon to misbehave with a child was intended to establish that she
had not. But the record contains no indication of the extent of trial counsel’s
knowledge, if any, about the alleged childhood oral-sex incident, and counsel was
not given the opportunity to explain her reason for asking these questions.
Next, Vernon argues that defense counsel’s assistance was deficient because
she failed to cross-examine Amanda on an alleged prior false allegation she made
11
against Vernon. However, the only information in the record about the prior
allegation appears in an email sent from the prosecutor to defense counsel, and in
the State’s notice of intent to introduce extraneous offenses. The email described a
2008 case (eight years before this trial, when the complainant was approximately
four years old) in which Amanda made an allegation against Vernon, and later
recanted. She accused someone else, who later committed suicide. That case
against Vernon was dismissed.
The State’s notice of intent included a 2008 charge for aggravated sexual
assault of a child, listing Amanda as the complainant in that case. The record does
not establish any details of the retracted allegation, or any additional circumstances
regarding the report or retraction. There are many possible explanations for why
Vernon’s attorney deliberately might have chosen not to cross-examine Amanda
about an incident that occurred when she was four years old. The record does not
allow this court to evaluate whether the accusation was actually false, or any
similarities between this case and the earlier case. Vernon does not point to
anything in the record that shows what information would have come out during a
cross-examination of Amanda that could have changed the result of the trial. The
record contains no explanation from counsel as to her reasoning for this decision.
Vernon further argues that he was denied effective assistance of counsel
because his trial counsel elicited testimony from Detective Hayes that he asked for
12
an attorney during his interview. During cross-examination of Detective Hayes,
counsel asked if Vernon had been cooperative during his interview, whether he
was advised about his Miranda rights, and whether he asked for an attorney.
According to Detective Hayes, Vernon was cooperative and was informed of his
rights. Although he did not ask for an attorney at the beginning of the meeting, he
later did ask for an attorney, and the interview was terminated.
Finally, Vernon contends that trial counsel was deficient in her failure to
object to the State asking Detective Hayes if he had formed an opinion about
whether Vernon had engaged in sexual contact with Amanda. Detective Hayes’s
opinion was that Vernon had done so. On this record, we cannot conclude that no
reasonable attorney would have failed to object to this question. Further, given that
the case was ultimately recommended to the district attorney’s office for
prosecution, Detective Hayes presumably believed Vernon was guilty of the
charged offense. See, e.g., Sandoval v. State, 409 S.W.3d 259, 295 (Tex. App.—
Austin 2013, no pet.). Vernon provides no argument as to how counsel’s failure to
object to a statement that was essentially self-evident was particularly damaging to
his defense, or that had counsel objected, there is a reasonable probability that the
outcome of the case would have been different.
We cannot speculate as to counsel’s reasoning for her decisions in defending
Vernon, and we cannot say that no reasonable attorney would have made the same
13
decisions. See Lopez, 343 S.W.3d at 142–43. Limitations of the record often render
a direct appeal inadequate to raise a claim of ineffective assistance of counsel. See
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Trial counsel
ordinarily should be given the opportunity to explain her actions before being
denounced as ineffective. Rylander v. State,
101 S.W.3d 107, 111 (Tex. Crim.
App. 2003). Moreover, an ineffective-assistance claim must be “firmly founded in
the record,” and the record must “affirmatively demonstrate the meritorious nature
of the claim.” Menefield v. State,
363 S.W.3d 591, 592 (Tex. Crim. App. 2012);
see also Thompson,
9 S.W.3d at 813. That necessary firm foundation is lacking in
this direct appeal. As such, this is not the “rare case in which the trial record will
by itself be sufficient to demonstrate an ineffective-assistance claim.” Nava v.
State,
415 S.W.3d 289, 308 (Tex. Crim. App. 2013). We overrule Vernon’s
ineffective-assistance issue.
III. Prosecutorial misconduct
On appeal, Vernon contends that the trial court erred by denying him a fair
trial and by allowing his motion for new trial, which alleged due-process
violations, to be overruled by operation of law. The motion for new trial attached
no evidence, and Vernon failed to secure a hearing on the motion or otherwise
present it for a ruling.
14
Vernon challenges, as he did in his motion for new trial, the overall fairness
of his trial because the prosecutor improperly “testified” during cross-examination
of a witness and made improper and prejudicial closing arguments. Defense
counsel did not object contemporaneously with any of the prosecutorial statements
now challenged on appeal. Vernon argues, however, that the “overall conduct of
the prosecutor was so flawed” that it should have resulted in his motion for new
trial being granted, and it constitutes fundamental error requiring reversal.
To preserve a complaint of prosecutorial misconduct for appellate review,
the record must show that the defendant made a specific and timely objection to
the error, requested an instruction that the jury disregard the improper matter
placed before it, and moved for a mistrial. Hajjar v. State, 176 S.W.3d 554, 566
(Tex. App.–Houston [1st Dist.] 2004, pet. ref’d). If the record fails to establish
preservation of error, a defendant forfeits his right to complain on appeal. TEX. R.
APP. P. 33.1; Clark v. State,
365 S.W.3d 333, 339 (Tex. Crim. App. 2012). In an
attempt to overcome the failure to preserve error, Vernon primarily relies on
Rogers v. State, in which this court acknowledged that the rules of
error-preservation may not strictly apply in a case of “serious and continuing
prosecutorial misconduct that undermines the reliability of the factfinding process
or, even worse, transforms the trial into a farce and mockery of justice . . . resulting
in deprivation of fundamental fairness and due process of law.”
725 S.W.2d 350,
15
360 (Tex. App.—Houston [1st Dist.] 1987, no pet.) (citing Berger v. United States,
295 U.S. 78, 84, 88,
55 S. Ct. 629, 631, 633 (1935); Ruth v. State,
522 S.W.2d 517
(Tex. Crim. App. 1975); and Kerns v. State,
550 S.W.2d 91 (Tex. Crim. App.
1977)).
The alleged prosecutorial misconduct of which Vernon complains took place
during the State’s cross-examination of the defense’s above-mentioned reputation
witness. The witness acknowledged during direct examination that she had spoken
with the prosecutor before trial about Amanda’s allegations against Vernon. In
response to the witness’s testimony that she never had thought he had misbehaved
with a child, the State asserted that “multiple witnesses, including this witness”
previously had admitted that when they were children, Vernon made the witness
perform oral sex on him. The State argued that the witness’s testimony on direct
examination opened the door to cross-examination about the oral-sex incident.
Although defense counsel stated during the bench conference that she “disagreed”
with the ruling, there was no objection to the State’s subsequent questions except
that one was “overbroad.”
Vernon’s first example of the alleged misconduct relates to the following
exchange, which occurred during cross-examination conducted by the prosecutor:
Q: Ma’am, we did talk Monday morning, correct?
A: Yes, sir.
16
Q: Because I subpoenaed you on this case?
A: Yes, sir.
Q: And we talked about this case, and we also talked about
something else that happened to you when you were a child,
correct?
A: Yes, sir.
Q: And you want to tell the jury what happened:
[defense counsel]: Objection; overbroad question.
[prosecutor]: I’ll rephrase, Judge.
Q: When you were a kid, [Vernon] did something bad with you,
didn’t he?
A: You inferring to [Vernon], or everybody that was involved?
Q: No. I’m talking about [Vernon].
A: We—yes sir.
Q: [Vernon] made you perform oral sex on him, didn’t he?
A: No, sir.
Q: That’s not what you told me Monday morning?
A: That is not what I told you.
Q: OK. What did you tell me?
A: I told you we played a game . . . all of us. I did not tell you, sir,
that I was forced to perform oral sex on [Vernon].
Q: Did you perform oral sex on [Vernon]?
A: No, sir, I did not.
17
Q: [Another witness] didn’t walk in on you performing oral sex on
[Vernon]?
A: No, sir, she did not.
Other than the objection to a question as being overly broad, Vernon’s counsel did
not object to any part of this cross-examination. In the motion for new trial,
Vernon characterized the prosecutor’s “accusation” as being knowingly “false and
unsupported.” On appeal, he characterizes the prosecutor’s line of questioning as
improper “testimony.”
The State later called another of Vernon’s relatives as a witness. She
testified that when Vernon and the previously mentioned witness were children, an
adult relative called her, very upset, asking that she come over. This witness
further testified that upon arrival, Vernon told her he had been caught with the
previously mentioned witness “on her knees,” performing oral sex on him.
We disagree with Vernon’s characterization of the above-quoted line of
questioning as improper “testimony” by the prosecutor. Moreover, Vernon
presented no evidence that the prosecutor asked the question in bad faith. See
Rogers, 725 S.W.2d at 359 (in evaluating a claim of prosecutorial misconduct,
whether the prosecutor asked a question in bad faith is one factor to consider). The
prosecutor’s questions were an attempt to impeach the witness’s testimony by
suggesting that the witness gave a false impression to the jury by testifying that
Vernon had never “misbehaved” with a child. Other evidence suggested that
18
Vernon made that same witness perform oral sex on him, and the prosecutor
claimed that the witness herself had confirmed the story. Further, the prosecutor
obtained permission from the court before exploring this line of questioning. This
scenario is therefore distinguishable from Rogers, in which the inflammatory
allegations at issue lacked any evidentiary support in the record. 725 S.W.2d at
360.
Vernon also confusingly suggests that because he is “a white man with an
African American spouse”—a characterization which is not supported by
references to the appellate record—this testimony “brought forth” a “powerful”
racial “prejudicial stereotype.” The prosecutor made no explicit reference to race,
as happened in the single authority relied upon by Vernon’s brief, Buck v. Davis,
137 S. Ct. 759 (2017). We reject the suggestion that this line of questioning
somehow constituted fundamental error because of Vernon’s race or that of his
wife.
Vernon also alleges prosecutorial misconduct in numerous aspects of the
State’s closing argument. He asserts that the prosecutor indirectly accused Vernon
of dishonesty by twice stating that “somebody” was “lying.” Vernon contends that
the prosecutor vouched for the complainant’s credibility by stating, “if [Amanda]
was lying yesterday, she’s a best actor—actress—I’ve ever seen in my entire life,”
and “please do not trivialize what Defense counsel wants you to believe is some
19
unbeknown reason to lie.” The prosecutor also stated that the defense witnesses
“were the most choreographed bunch I’ve seen in a long time,” and Vernon
complains on appeal that this statement insinuated that defense counsel was their
choreographer. Vernon also argues that the prosecutor invited members of the jury
to place themselves in the shoes of one of the parties by stating: “For those of you
who have children, this should be your worst nightmare.” Finally, Vernon contends
that the prosecutor misstated the law and invited the jury to lower the burden of
proof when he stated: “if you find him not guilty, you’re not only telling
[Amanda], ‘Now, I don’t believe you. I’m sorry. I don’t believe you,” but you’re
also telling our community that there’s going to be another [Amanda].”
Even if we were to conclude that each of these incidents, considered in
isolation, constituted improper jury argument, we cannot say that the prosecutor’s
conduct considered as a whole deprived Vernon of substantial rights or a fair trial.
By comparison, in Temple v State the appellant raised 75 issues related to the trial
court’s rulings and alleged prosecutorial misconduct. 342 S.W.3d 572 (Tex.
App.—Houston [14th Dist.] 2010), aff’d,
390 S.W.3d 341 (Tex. Crim. App. 2013).
Despite finding several instances of prosecutorial misconduct, the court held that
the appellant was not deprived of his substantial rights or a fair trial. Id. at 619. The
court held that the prosecutor’s improper questions as to a witness’s veracity were
harmless because they “merely emphasize[d] the obvious,” that the appellant
20
disagreed with the factual assertions of the State’s witnesses at trial. Id. at 615. The
court concluded that the prosecutor’s inflammatory arguments during closing that
appellant’s family committed “more aggravated perjury in this trial than this
building has heard in a decade” and that a State’s witness “has more honor in his
little finger than [appellant’s] family has in the whole mess of them,” did not
substantially influence the jury. Id. The court also found that appellant had waived
any error in the State’s alleged vouching for its witnesses’ credibility in closing
argument because the State previously had made a substantially similar argument
without objection. Id. at 610.
Vernon’s failure to contemporaneously object to prosecutorial misconduct,
see TEX. R. APP. P. 33.1(a), or to present his motion for new trial for a ruling, see
TEX. R. APP. P. 21.6, constitutes waiver of his particular objections. Moreover, the
record considered as a whole does not reflect such persistent misconduct or
impermissible prejudice as would result in a “probable cumulative effect upon the
jury.” Rogers, 725 S.W.2d at 361. We conclude that any misconduct by the
prosecutor in this case does not rise to the level of fundamental error that requires
no objection to preserve the right to raise the issue on appeal. We overrule
Vernon’s appellate issues alleging prosecutorial misconduct.
21
IV. Charge error on unanimity requirement
Vernon argues that the trial court erred by failing to properly instruct the
jury that it was required to reach a unanimous verdict as to one specific incident of
indecency with a child, as alleged in the indictment.
Texas law requires that a jury reach a unanimous verdict about the specific
felony that the defendant committed. Cosio v. State, 353 S.W.3d 766, 771 (Tex.
Crim. App. 2011); Gomez v. State,
498 S.W.3d 691, 695 (Tex. App.—Houston [1st
Dist.] 2016, no pet.). The jury must agree upon a single and distinct incident that
would constitute commission of the offense alleged in order to be unanimous in its
verdict. Cosio,
353 S.W.3d at 771; Gomez,
498 S.W.3d at 695.
As it pertains to this case, non-unanimity may occur when the State charges
a defendant with one offense and presents evidence that he committed the charged
offense on multiple but separate occasions. Cosio, 353 S.W.3d at 772. To ensure
unanimity, the charge must instruct the jury that its verdict must be unanimous as
to a single offense.
Id. A defendant may choose to require the State to elect a
specific criminal act upon which it relies for conviction. See
id. at 775. This choice
is strategic and may be waived or forfeited.
Id. For example, a defendant may
choose not to exercise this right so the State will be jeopardy-barred from
prosecuting any of the other offenses that were in evidence. See id.; see also Ex
parte Pruitt,
233 S.W.3d 338, 346 (Tex. Crim. App. 2007). However, even when
22
the State is not required to elect, the trial judge bears the ultimate responsibility to
ensure unanimity through the instructions in the jury charge. See Cosio, 353
S.W.3d at 776.
In analyzing a potential jury-charge error, we use a two-step review to
decide whether reversal is required. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim.
App. 2005); Gomez,
498 S.W.3d at 696. First, we decide whether an error exists.
Ngo,
175 S.W.3d at 743. If we determine that an error exists, we analyze the error
for harm.
Id. When, as in this case, there was no timely and specific objection at
trial, we review the error under the egregious harm standard set forth in Almanza v.
State,
686 S.W.2d 157 (Tex. Crim. App. 1984). See Cosio,
353 S.W.3d at 776. To
constitute egregious harm, the charge error must have affected “the very basis of
the case,” “deprive[d] the accused of a valuable right,” or “vitally affect[ed] his
defensive theory.” Gomez,
498 S.W.3d at 696 (quoting Almanza,
686 S.W.2d at
172). To determine egregious harm, we evaluate the error in the light of the entire
jury charge, the state of the evidence, including the contested issues and weight of
the probative evidence, the argument of counsel and any other relevant information
revealed by the record of the trial as a whole. Cosio,
353 S.W.3d at 777.
The court’s charge inquired about one act of indecency with a child that
occurred on or about July 12, 2014. The charge instructed the jury to find Vernon
guilty as charged if it found from the evidence beyond a reasonable doubt that on
23
or about July 12, 2014, Vernon intentionally engaged in sexual contact with
Amanda, a child younger than 17 years of age. The charge also instructed the jury
that any testimony related to extraneous offenses was to only be considered in
determining Vernon’s intent, Vernon’s or Amanda’s state of mind, or any previous
relationship between Vernon and Amanda in connection with the offense. The
charge also included a general unanimity instruction.
Vernon contends that the State alleged only one instance of indecency with a
child in the indictment, but it presented evidence that the offense had happened
multiple times. Accordingly, he argues that the charge was erroneous because it
did not instruct the jury that it needed to unanimously base its verdict on a single
offense among those presented. When evidence of multiple different instances of
conduct constituting the same offense is presented, neither an extraneous-act
instruction nor a general unanimity instruction is sufficient to ensure a unanimous
verdict on a single incident. See Gomez, 498 S.W.3d at 697.
The State argues that no unanimity instruction was required in this case
because the testimony established that Vernon committed a “specific, detailed
offense” on or about a specific date as alleged in the indictment. The State
contends that although there was evidence that Vernon engaged in sexual contact
with Amanda on other unspecified dates, there was no testimony as to multiple
24
specific and detailed instances of the charged offense which the jury could have
relied upon to reach a non-unanimous verdict.
Vernon relies upon this court’s opinion in Gomez, as well as the opinion of
the Court of Criminal Appeals in Arrington v. State, 451 S.W.3d 834 (Tex. Crim.
App. 2015), to support his argument for reversal. In Gomez, the appellant had been
charged with only one count of sexual assault, but the State presented evidence of
at least three distinct criminal offenses.
498 S.W.3d at 697. This court concluded
that the trial court’s charge did not instruct jurors that their verdict must be
unanimous as to a particular offense, and that weighed heavily in favor of a finding
of egregious harm.
Id. at 697, 699. However, the facts of Vernon’s case are
distinguishable. In Gomez, there was evidence of at least three separate incidents,
including details about where each incident occurred and specific conduct by the
appellant that could be described as sexual contact.
Id. at 693–94. The appellant in
Arrington was charged with numerous counts of aggravated sexual assault of a
child, and during trial, the complainant described approximate dates, locations,
specific conduct, and other circumstances related to four distinct instances in
which the appellant engaged in sexual contact. 451 S.W.3d at 836–837. The jury
charge included a general unanimity instruction, but it did not identify the
particular incidents as they corresponded to the charges before the jury.
Id. at 838.
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The Arrington court agreed with the conclusion of the intermediate court of
appeals that the jury charge was erroneous. Id. at 845.
In this case, Amanda testified in detail only as to the incident that happened
on or about the date alleged in the indictment. When she was asked if Vernon had
touched her more than 20 times, she responded: “probably.” However, she never
gave approximate dates or locations of the other incidents, nor did she describe
Vernon’s conduct during a specific separate instance that could constitute sexual
contact. Based on the evidence in this case, there was no danger that some jurors
would find that Vernon committed the offense of indecency with a child on or
about the date alleged in the indictment, while others would have found that he
committed that same offense on some other, unspecified date. See Rodriguez v.
State, 446 S.W.3d 520, 531 (Tex. App.—San Antonio 2014, no pet.) (when
complainant testified that the abuse occurred on several occasions, but did not
provide many specific details as to the other alleged assaults, jury could not
confuse “specific, detailed testimony” about the charged offenses “with the very
vague reference” complainant made to sexual contact happening on several
occasions); see also Cueva v. State,
339 S.W.3d 839, 851 (Tex. App.—Corpus
Christi 2011, pet. ref’d) (holding that complainant’s vague testimony that appellant
touched her on more than one occasion did not create danger of confusion on
specific testimony of charged offense).
26
Accordingly, we conclude that a specific unanimity instruction was not
required, and the trial court did not err by failing to charge the jury further on
unanimity. We overrule Vernon’s challenge to the jury charge.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Jennings, Massengale, and Caughey.
Justice Jennings, concurring in the judgment.
Publish. TEX. R. APP. P. 47.2(b).
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