Vernon v. State

• Decision Date: 30 August 2018
• Docket Number: NO. 01-16-00645-CR,01-16-00645-CR
• Parties: Edwin Eugene VERNON, Jr., Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

571 S.W.3d 814

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

Michael 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 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, 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.

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 cou...