Edwin Eugene VERNON, Jr., Appellant v. The STATE of Texas, Appellee

NO. 01-16-00645-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued August 30, 2018 Discretionary Review Refused February 13, 2019

*818Michael Massengale, Justice

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 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.

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 *819home. 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, 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 reasonable doubt. *Jackson v. Virginia* , 443 U.S. 307, 315, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (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, 99 S.Ct. 2781 ; *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.

*820*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 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 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 *821to a fair trial. *Strickland v. Washington* , 466 U.S. 668, 684, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (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, 25 L.Ed.2d 763 (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 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, 104 S.Ct. 2052 ; *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 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.

*822Defense 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 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 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 *823damaging 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 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.

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, 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, 79 L.Ed. 1314 (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 *824the 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.

> 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.

> 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 *825in 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 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* , --- U.S. ----, 137 S.Ct. 759, 197 L.Ed.2d 1 (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 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 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 *826trial 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.

**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 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 *827defensive 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 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 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. The *Arrington* court agreed with the conclusion of the intermediate court of *828appeals 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).

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.

Justice Jennings, concurring in the judgment.

**CONCURRING OPINION**

Terry Jennings, Justice

I concur in the judgment of the Court and write separately to explain why, although this Court has a duty to address the factual-sufficiency challenge of appellant, Edwin Eugene Vernon, Jr., in accord with the Factual-Conclusivity Clause of the Texas Constitution,1 I agree that we must, at this time, overrule his challenge in light of this Court's precedent in *Ervin v. State* , 331 S.W.3d 49 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd).2

In his sixth issue, appellant argues that the evidence is factually insufficient to support his conviction for the offense of indecency with a child3 and "urge[s] [the Court] to reexamine [its] precedent[ ]" because "[t]he abolition of factual sufficiency review in criminal cases leaves a gaping hole in the constitutional protection of [Texas's] citizens."

*829The failure to conduct appellant's requested factual-sufficiency review, as required by the Texas Constitution, results in the denial of due process of law. *See* U.S. CONST . amends. V ("No person shall be ... deprived of life, liberty, or property, without due process of law...."), XIV, § 1 ("No State shall ... deprive any person of life, liberty, or property, without due process of law...."); TEX. CONST . art. I, § 19 ("No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land."); *see also id.* art. V, § 6(a) ("[T]he decision of [the Texas Courts of Appeals] shall be conclusive on all questions of fact brought before them on appeal or error.").

Further, this Court's failure to address appellant's factual-sufficiency challenge in accord with the Factual-Conclusivity Clause violates his right to equal protection of law. *See* U.S. CONST . amend. XIV, § 1 ("No State shall ... deny to any person ... the equal protections of the laws."); TEX. CONST . art. I, § 3 (equal protection); *Payne v. State* , No. 01-16-00821-CR, 2017 WL 5503650, at *4-8 (Tex. App.-Houston [1st Dist.] Nov. 16, 2017, no pet.) (mem. op., not designated for publication) (Jennings, J., concurring); *Paredes v. State* , No. 01-15-00708-CR, 2017 WL 817170, at *11-15 (Tex. App.-Houston [1st Dist.] Mar. 2, 2017, pet. ref'd) (mem. op., not designated for publication) (Jennings, J., concurring); *Alvarado v. State* , No. 01-14-00894-CR, 2016 WL 7694355, at *5-9 (Tex. App.-Houston [1st Dist.] Dec. 22, 2016, no pet.) (mem. op., not designated for publication) (Jennings, J., concurring); *Edwards v. State* , 497 S.W.3d 147, 165-68 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd) (Jennings, J., concurring); *Bearnth v. State* , 361 S.W.3d 135, 146-47 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd) (Jennings, J., concurring); *Kiffe v. State* , 361 S.W.3d 104, 110-19 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd) (Jennings, J., concurring); *Mosley v. State* , 355 S.W.3d 59, 73-77 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd) (Jennings, J., concurring); *Kibble v. State* , 340 S.W.3d 14, 24-27 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd) (Jennings, J., concurring); *Ervin* , 331 S.W.3d at 56-70 (Jennings, J., concurring); *see also**Ibe v. State* , No. 01-12-00422-CR, 2014 WL 1058129, at *3 n.1 (Tex. App.-Houston [1st Dist.] Mar. 18, 2014, pet. ref'd) (mem. op., not designated for publication) (panel acknowledging failure to address defendant's question of fact violated United States Constitution's guarantees of due process of law and equal protection of laws); *Fisher v. State* , No. 01-11-00516-CR, 2013 WL 4680226, at *4-5 (Tex. App.-Houston [1st Dist.] Aug. 29, 2013, pet. ref'd) (mem. op., not designated for publication) (same).

As the Texas Court of Criminal Appeals clearly explained, as recently as 2009, in addition to being supported by legally-sufficient evidence, under Texas law,

> A verdict must also be supported by factually sufficient evidence. But unlike a legal sufficiency review, which is a federal due process requirement, a ***factual sufficiency review is a creature of state law*** . On direct appeal, a court must begin its factual sufficiency review with the assumption that the evidence is legally sufficient under *Jackson* [*v. Virginia* , 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979) ]. ***Evidence that is legally sufficient, however, can be deemed factually insufficient in two ways: (1) the evidence supporting the conviction is "too weak" to support the factfinder's verdict, or (2) considering conflicting evidence, the factfinder's verdict is "against the great weight and preponderance of the evidence."*** When a court of appeals conducts *830a factual sufficiency review, it must defer to the jury's findings. We have set out three "basic ground rules" implementing this standard. First, the court of appeals must consider all of the evidence in a neutral light, as opposed to in a light most favorable to the verdict. Second, the court of appeals may only find the evidence factually insufficient when necessary to "prevent manifest injustice." Although the verdict is afforded less deference during a factual sufficiency review, the court of appeals is not free to override the verdict simply because it disagrees with it. Third, the court of appeals must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly weighs against the verdict. This requirement serves two related purposes. First, it supports the court of appeals's judgment that a manifest injustice has occurred. And second, it assists [the court of criminal appeals] in ensuring that the standard of review was properly applied.

*Laster v. State* , 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (Keasler, J., joined by Keller, P.J., Meyers, Womack & Hervey, JJ.) (emphasis added) (internal footnotes omitted).

In regard to appellate challenges based on the factual insufficiency of the evidence in Texas courts of appeals, the Factual-Conclusivity Clause of the Texas Constitution provides in no uncertain terms that:

> [T]he decision of [the Texas Courts of Appeals] shall be conclusive on all ***questions of fact*** brought before them on appeal or error.

TEX. CONST . art. V, § 6 (a) (emphasis added). The original intent of the drafters of the clause is clear. The clause "requires" that Texas courts make a "distinction" between questions of law and questions of fact. *Sw. Bell Tel. Co. v. Garza* , 164 S.W.3d 607, 621 (Tex. 2004). As clearly explained, again, by the Texas Court of Criminal Appeals, in *Laster* :

> Unlike [the court of criminal appeals's] jurisdiction over legal sufficiency decisions, [its] jurisdiction over the court of appeals's factual sufficiency decisions is limited. ***The Factual[-]Conclusivity Clause gives final appellate jurisdiction to the court of appeals on questions of fact brought before the court*** . We review the court of appeals's factual sufficiency analysis to ensure that the court applied the correct legal standard and considered all of the relevant evidence. We do not conduct a de novo factual sufficiency review. If we determine that the court of appeals applied the wrong standard or misapplied the correct standard, the case must be remanded to the court of appeals to conduct a proper factual sufficiency review.

275 S.W.3d at 518-19 (emphasis added) (internal footnotes omitted).

Thus, under the Factual-Conclusivity Clause, this Court has a duty to address appellant's question of fact as a question of fact, i.e., by neutrally considering and weighing all the evidence in the record, including that which is contrary to the jury's verdict. *Id.* ; *Cain v. State* , 958 S.W.2d 404, 408 (Tex. Crim. App. 1997) ; *Ex parte Schuessler* , 846 S.W.2d 850, 852 (Tex. Crim. App. 1993) ; *Meraz v. State* , 785 S.W.2d 146, 153 (Tex. Crim. App. 1990) ; *see also**Pool v. Ford Motor Co.* , 715 S.W.2d 629, 633-35 (Tex. 1986) ; *In re King's Estate* , 244 S.W.2d 660, 661-62 (Tex. 1951). Moreover, the Texas Legislature has expressly directed, consistent with the Factual-Conclusivity Clause, that Texas Courts of Appeals "may reverse the judgment in a criminal action ... upon the facts." TEX. CODE CRIM. PROC. ANN. art. 44.25 (Vernon 2018). Indeed, it is well-settled that it is reversible error for a court of *831appeals to address a question of fact as a question of law. *In re King's Estate* , 244 S.W.2d at 661-62 ; *see also**Ex parte Schuessler* , 846 S.W.2d at 852 ; *Meraz* , 785 S.W.2d at 153.

However, the Texas Court of Criminal Appeals, disregarding the plain language of Article V, Section 6 of the Texas Constitution, the plain language of Article 44.25 of the Texas Code of Criminal Procedure, decades-old precedent of the Texas Supreme Court, and its own well-established precedent, has purported to "abolish[ ]" factual-sufficiency review in criminal cases in Texas. *Howard v. State* , 333 S.W.3d 137, 138 n.2 (Tex. Crim. App. 2011). In two separate opinions, the court concluded that in criminal cases, "a legal-sufficiency [appellate] standard [of review is] 'indistinguishable' from a factual-sufficiency [appellate] standard" of review. *Brooks v. State* , 323 S.W.3d 893, 901 (Tex. Crim. App. 2010) (Hervey, J., joined by Keller, P.J., Keasler & Cochran, JJ.); *see**id.* at 912-26 (Cochran, J., joined by Womack, J., concurring) (overruling use in criminal cases of factual-sufficiency appellate standard of review, which was consistent with Texas Supreme Court precedent and articulated in *Clewis v. State* , 922 S.W.2d 126 (Tex. Crim. App. 1996) ).

Subsequently, this Court, in light of the Texas Court of Criminal Appeal's plurality opinions in *Brooks* , decided to answer questions of fact in criminal appeals as pure questions of law by applying the legal-sufficiency appellate standard of review to fact questions and viewing the evidence in the light most favorable to the jury's verdict, not neutrally reweighing it. *See**Ervin* , 331 S.W.3d at 52-56. Although the majority in *Ervin* erred in doing so, this Court did have jurisdiction to so err, and, until this Court or a higher court overrules *Ervin* , we must accept it as binding precedent. *See**Swilley v. McCain* , 374 S.W.2d 871, 875 (Tex. 1964) ; *see also**Benge v. Williams* , 472 S.W.3d 684, 738 (Tex. App.-Houston [1st Dist.] 2014) (Jennings, J., dissenting from denial of en banc reconsideration) (although "we are not free to disregard binding precedent," as appellate court justices, "we ... are certainly free to point out any flaws in the reasoning of the [binding] opinions"), *aff'd* , 548 S.W.3d 466 (Tex. 2018) ; *Jones v. State* , 962 S.W.2d 96, 99 (Tex. App.-Houston [1st Dist.] 1997) (Taft, J., concurring) (although "we are bound by precedent ..., we are not gagged" by it), *aff'd* , 984 S.W.2d 254 (Tex. Crim. App. 1998).

Given the express language of Article V, Section 6 of the Texas Constitution and Article 44.25 of the Texas Code of Criminal Procedure, it is readily apparent that answering appellant's question of fact as a purely legal question violates the United States Constitution's guarantee of due process of law, as well as its guarantee of the equal protection of the laws, because it, in fact, deprives him of his well-established Texas appellate remedy of a new trial, recognized in the Texas Constitution and by the Texas Legislature in Article 44.25. *See* U.S. CONST . amends. V, XIV ; *Griffin v. Illinois* , 351 U.S. 12, 18, 76 S. Ct. 585, 590, 100 L.Ed. 891 (1956) (concluding in states providing for appellate review, criminal defendant entitled to protections afforded under Due Process and Equal Protection Clauses of United States Constitution); *see also**M.L.B. v. S.L.J.* , 519 U.S. 102, 111, 117 S. Ct. 555, 561, 136 L.Ed.2d 473 (1996) ("This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts." (internal quotations omitted) ).

*832Moreover, given that the Texas Supreme Court, in reading Article V, Section 6 of the Texas Constitution, clearly recognizes the right of civil litigants to present intermediate courts of appeals with questions of fact and the remedy of a remand for a new trial, the denial of that right, given that Article V, Section 6 is not in any way limited to civil cases, amounts to a denial of the equal protection of the law. *See* U.S. CONST . amend. XIV, § 1 ; TEX. CONST . art. I, § 3. "There is no sound basis for the disparate interpretations of a single constitutional provision based on whether the matter on appeal is civil or criminal in nature." Susan Bleil & Charles Bleil, *The Court of Criminal Appeals Versus the Constitution: The Conclusivity Question* , 23 ST. MARY'S L.J. 423, 424 (1991).

Although Texas Courts of Appeals have only rarely found evidence factually insufficient to support criminal convictions or findings in civil cases, the right of a defendant in a criminal case or a litigant in a civil case to assert a question of fact on appeal and request a remand for a new trial is critical and in no way interferes with the right to trial by jury. As explained by former Texas Supreme Court Chief Justice Thomas Phillips:

> Appellate courts have the authority to review the sufficiency of evidence in support of the fact finder's determinations for one reason: ***to undo the effect of an unjust trial*** . This traditional judicial function, now exercised only by our intermediate appellate courts, neither conflicts with nor infringes upon the right of trial by jury. No appeals court in Texas has ever been given, or has ever exercised, the authority to *find* any fact. ***The extent of an appellate court's power is, as it has always been, to remand for new trial if more than a scintilla of probative evidence exists to support the result reached by the jury.***

> This authority exists regardless of whether the court of appeals is reviewing a jury's finding or its "non-finding," that is, the failure of a jury to find a fact. ***In either case, the court is not substituting its own finding for the jury's; it is merely ordering a new trial before another jury for a new determination.***

> ***The court of appeals must have this authority in order to do justice.*** Trials may be just as unfair when the party with the burden of proof unjustly loses as when the party with the burden of proof unjustly wins. ***To fulfill its constitutional responsibilities*** , the court of appeals must have authority to review both findings and non-findings.

*Herbert v. Herbert* , 754 S.W.2d 141, 145 (Tex. 1988) (Phillips, C.J., concurring) (emphasis added) (internal citations omitted).

In sum, the Factual-Conclusivity Clause of the Texas Constitution provides a much-needed and critical fail-safe against manifestly unjust convictions that are based on evidence that is factually insufficient, although legally sufficient. And, respectfully, neither this Court, nor the Texas Court of Criminal Appeals has the legitimate power to "abolish" this constitutionally guaranteed right. *See**Ex parte Schuessler* , 846 S.W.2d at 852-53 (court of criminal appeals does not have authority to "create[ ] a standard of review for the courts of appeals that contravene[s] the Texas Constitution"); *see also**M.L.B.* , 519 U.S. at 111, 117 S. Ct. at 561 ("This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts." (internal quotations omitted) ). As previously explained by the court of criminal appeals:

> *833The court of appeals is ... constitutionally given the authority to determine if a jury finding is against the great weight and preponderance of the evidence and if this is improper it is up to the people of the State of Texas to amend the Constitution.

*Meraz* , 785 S.W.2d at 154.

1

Tex. Const . art. V, § 6 (a).

2

We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the jury's verdict to determine whether any "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." *Jackson v. Virginia* , 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979) ; *Williams v. State* , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). This Court now reviews the factual sufficiency of the evidence under the same appellate standard of review as that for legal sufficiency. *Ervin v. State* , 331 S.W.3d 49, 52-56 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd).

3

*See* Tex. Penal Code Ann . § 21.11(a) (Vernon Supp. 2017).