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.




                                         25
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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