author:
JOHN S. ANDERSON, Justice. KEM THOMPSON FROST, Justice,
      J. HARVEY HUDSON, Justice,

text:
    Anthony DIXON, Appellant v. The STATE of Texas, Appellee.
    No. 14-03-01259-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 21, 2005.

      Joseph W. Varela, Houston, TX, for appellant.
    David Bosserman, Angleton, TX, for ap-pellee.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   MAJORITY OPINION

JOHN S. ANDERSON, Justice.

Appellant Anthony Dixon was charged by indictment with aggravated sexual assault of a child. The jury returned a guilty verdict and assessed punishment at thirty-five years’ confinement in the Texas Department of Criminal Justice, Institutional Division. In four points of error, appellant contends: (1) the trial court erred by failing to require the State to elect a specific act it would rely upon for conviction; (2) the evidence is legally insufficient to support the conviction; (3) the trial court erred by failing to grant his special requested charge; and (4) the trial court erred by failing to grant a mistrial because of improper prosecutorial argument. We reverse and remand.

I. FAILURE TO REQUIRE AN ELECTION

In his first point of error, appellant contends the trial court erred when it failed to require the State to elect a specific act it would rely upon for the indicted offense. Specifically, appellant argues this error denied him of his right to have a unanimous jury verdict. The record reflects the trial court did not require the State to make an election. Appellant moved for an election at various stages of the trial, including at the resting of the State’s case in chief, and at the closing of all the evidence. But the court ultimately denied the relief.

A. Was Appellant Entitled to an Election?

The general rule is, “where one act of intercourse is alleged in the indictment and more than one act of intercourse is shown by the evidence in a sexual assault trial, the State must elect the act upon which it would rely for conviction.” O’Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim.App.1988). Before the State rests, the trial court has discretion in directing the State to make an election. See id. at

771-72. “However, once the State rests its case in chief, in the face of a timely request by the defendant, the trial court must [emphasis added] order the State to make its election. Failure to do so constitutes error.” Id. at 772.

Here, appellant was indicted for aggravated sexual assault of a child younger than fourteen years of age. Specifically, the indictment alleged appellant committed aggravated sexual assault of a child by causing his sexual organ to contact the sexual organ of the complainant. During the State’s case in chief, the complainant, E.M., testified appellant, her uncle, periodically resided at her mother’s apartment and shared a bedroom with the complainant. Appellant slept on a couch in her bedroom while she slept in her bed. E.M. testified that while she slept, appellant would get into her bed, remove his clothes as well as hers, and cause his sexual organ to contact her sexual organ.

During the State’s case in chief, the State asked E.M. if she remembered how many times this happened. She said it happened “one-hundred times.” E.M. testified it happened every night that appellant stayed at her home and “only one time in the day time.” The State presented evidence that six stains on E.M.’s bed comforter tested positive for the presence of semen, and Dr. Sheila Lahoti, who examined E.M., testified that she believed there were multiple incidents of vaginal trauma. During closing argument, the State argued that because of E.M.’s youth, she did not really know the exact number of times appellant committed this offense; however, the State argued E.M.’s testimony of “one-hundred times” really meant “it happened a bunch of times.”

Based on E.M.’s testimony, more than one act of sexual contact was shown by the evidence, but only one act of contact was alleged in the indictment. Because appellant moved for an election at the close of the State’s case in chief, failure of the trial court to order the State to make an election constitutes error. O’Neal, 746 S.W.2d at 772.

B. Was the Error Harmful?

Appellant contends the trial court’s denial of his timely motion to elect effectively denied his right to have a unanimous verdict.

The appellant’s right to require the State to elect is a right of constitutional proportions. Phillips, 130 S.W.3d at 352. This court has held that when the reason underlying the election requirement is unanimity, the error is constitutional in nature. Id. at 351-52.

Where the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt the error did not contribute to the conviction or punishment. Tex.R.App. P. 44.2(a). A constitutional error within the meaning of Rule 44.2(a) is an error that directly offends the United States or Texas Constitution, without regard to any applicable statute or rule. Durham v. State, 153 S.W.3d 289, 292 (TexApp.-Beaumont 2004, no pet.) (citing Tate v. State, 988 S.W.2d 887, 890 (Tex.App.-Austin 1999, pet. ref d)).

The O’Neal court was faced with facts similar to those in the case at bar in that the State was not, despite repeated motions, required to elect which sexual assault it would rely upon for conviction until the close of all the evidence. However, in O’Neal, the trial court’s failure to require the State to make a timely election as to the offense upon which it sought conviction was held to be harmless because even though many instances of improper conduct were described, the focus was on one sexual assault that occurred on April 24, 1984. Both the complainant and her stepsister testified in detail about the events of that evening; thus, by the close of the State’s case, it was clear that the act upon which the State would rely for conviction occurred on April 24, 1984. 746 S.W.2d at 772. Accordingly, the O’Neal court held the delayed election was error, but in the context of the trial, it was harmless error. Id. at 773.

Here, the State was never required to make an election, and the record did not provide appellant with notice of which assault it would rely upon for conviction, so the harmless error analysis in O’Neal is not applicable. The indictment in this case charged the commission of an offense on or about July 4, 2002. The jury charge contained an application paragraph allowing conviction if the jury found beyond a reasonable doubt the defendant committed the offense on or about July 4, 2002. The charge also advised the jury that the State was not required to prove the offense occurred on the exact date alleged in the indictment, but was allowed to prove the offense to have been committed any time prior to the filing of the indictment so long as the offense occurred within ten years of the filing of the indictment, which was filed October 10, 2002. Thus, the jury was allowed to convict appellant upon evidence sufficient to meet the beyond-a-reasonable-doubt standard, for any offense after October 1992 and before October 10, 2002.

The complainant’s testimony referred to numerous assaults by appellant during the night, but only one that occurred during the day. There was a specific date in the indictment, July 4, 2002, which was repeated in the application paragraph of the jury charge. There was, however, no testimony regarding a specific assault on any particular date. The State could have easily elected an offense upon which it would rely for conviction. However, all of appellant’s motions to require the State to elect an offense were denied. The State proved that the assaults occurred, but no one date was emphasized. Given the broad spectrum of choices available to the jurors, some may have selected a nighttime offense, while others may have chosen the daytime assault. Accordingly, the jury was capable of returning less than an unanimous verdict.

We cannot conclude beyond a reasonable doubt the trial court’s failure to require the State to elect the act upon which it would rely for conviction did not contribute to appellant’s conviction. Thus, the trial court’s error was harmful, and we sustain appellant’s first point of error.

Apparently ignoring the harm analyses in this court’s recent opinions in Phillips and Farr v. State, 140 S.W.3d 895 (Tex.App.-Houston [14th Dist.] 2004, pet. granted), the dissent would hold the trial court’s error harmless. In Phillips, where multi-pie offenses were charged in the indictment, this court held that, as to two of the indicted offenses, the trial court’s refusal to require the State to make an election allowed the jury to reach a non-unanimous verdict, a constitutional error that harmed appellant resulting in a reversal of those convictions and remand of those cases for a new trial. 130 S.W.3d at 358. The court also noted in Phillips that “ ‘[n]o principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.’ ” Id. at 351 (quoting Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948)). This court reached the same conclusion in Farr. There, this court held that where the sexual assault was described in detail more than once, but no specific incident was described, the jury was potentially allowed to reach a non-unanimous verdict and the trial court’s error was harmful under Texas Rule of Appellate Procedure 44.2(a). This court reversed the conviction in two cause numbers and remanded them for a new trial. 140 S.W.3d at 900. We are bound by these precedents, and so, too, is the dissent.

II. Legal Sufficiency

In his second point of error, appellant argues the evidence is legally insufficient because no evidence was properly before the jury upon which it could base a conviction. Appellant contends that since there was no election, the jury charge instruction limiting the jury’s consideration of the extraneous offenses applied to all the evidence admitted, including evidence of the indicted offense.

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Sufficiency of the evidence is measured by the hypothetically correct jury charge for the case; a charge that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried. Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App.1997). This standard “ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State’s proof of the crime rather than a mere error in the jury charge submitted.” Id. at 240. We presume any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Jensen v. State, 66 S.W.3d 528, 533 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). The testimony of a victim standing alone is sufficient to support a conviction for sexual assault. Id. at 534.

In this case, the jury charge accurately defined the elements of the offense of aggravated sexual assault of a child. See Tex. Pen.Code Ann. § 22.021(a)(1)(B)®, (iii) (Vernon Supp.2005). Viewing all of the evidence in the light most favorable to the verdict, we find a rational trier of fact could have found the essential elements of the offense of aggravated sexual assault of a child as alleged in the indictment. The evidence supporting the verdict includes the complainant’s testimony that appellant would get in her bed while she was asleep, take off his and her clothes, and cause his sexual organ to contact her sexual organ; the complainant testified this occurred “one hundred” times. The State presented evidence of semen stains on the complainant’s comforter, and Dr. Lahoti testified the complainant had vaginal trauma. The evidence also established the complainant was younger than 14 years of age and was not married to appellant.

In this case, there is no failure of the State’s proof of the crime alleged. The harm to appellant occurred because of the possibility that not every member of the jury found appellant guilty of the same crime. Theoretically, each juror could have found appellant guilty of a separate offense that occurred “on or about July 4, 2002.” The jury instruction with an extraneous offense charge did not modify the evidence presented to the jury. Viewing the evidence in the light most favorable to the verdict, we find a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Appellant’s second point of error is overruled.

III. Other Issues

Appellant’s third point complains the trial court erred in refusing to incorporate a charge limiting the jury’s consideration to one case for the purpose of a conviction. Appellant acknowledges in his brief this issue was brought up in his discussion of his motion to elect. Because we have sustained appellant’s first point of error based on the trial court’s failure to require the State to make an election as to the offense for which it would rely for a conviction, we need not address this collateral issue.

Appellant’s fourth point complains of the trial court’s failure to grant a mistrial based on allegedly improper jury argument by the State at the punishment hearing. We do not address this issue because we are remanding for a new trial.

Accordingly, we overrules points of error three and four.

CONCLUSION

We have determined the trial court committed reversible error when it failed to require the State to make an election as to which offense identified by the evidence it would rely upon for a conviction. Accordingly, we reverse the judgment of the trial court, and remand the case for a new trial.

FROST, J., concurring.

HUDSON, J., dissenting.

KEM THOMPSON FROST, Justice,

concurring.

The majority opinion is correct in its application of current case law and precedent. According to Phillips, the State’s refusal to elect one episode of sexual assault and the trial court’s failure to require the State to do so is error of constitutional magnitude, requiring a constitutional harm analysis under Texas Rule of Appellate Procedure 44.1(a). Phillips v. State, 130 S.W.3d 343, 351 (Tex.App.-Houston [14th Dist.] 2004, State’s pet. granted; appellant’s pet. refd). The majority opinion correctly applies the constitutional error standard and correctly concludes the error is harmful because the evidence describes general statements of sexual assault rather than one specific incident, allowing for a non-unanimous verdict. Farr v. State, 140 S.W.3d 895, 901 (Tex.App.-Houston [14th Dist.] 2004, pet. granted).

However, there is currently a conflict in the courts of appeals as to whether to apply a constitutional or non-constitutional harm analysis. Compare Phillips, 130 S.W.3d at 351 (applying constitutional harm analysis) with Wilson v. State, 3 S.W.3d 223, 226 (Tex.App.-Waco 1999, pet. refd) (applying non-constitutional harm analysis), and Cates v. State, 72 S.W.3d 681, 696-97 (Tex.App.-Tyler 2001, no pet.) (adopting non-constitutional analysis based on Wilson). The Court of Criminal Appeals has recently decided to review Phillips and Farr with the likely goal of resolving the conflict among the courts of appeals. In the case at bar, however, even a non-constitutional error analysis shows that the error is harmful to appellant and therefore warrants a new trial.

Non-constitutional errors are to be disregarded unless they affect substantial rights. Tex.R.App. P. 44.2(b). An error affects a substantial right when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). In Johnson v. State, 43 S.W.3d 1, (Tex.Crim.App.2001), the Court of Criminal Appeals explained the non-constitutional harm analysis, stating:

If, when all is said and done, the conviction is sure [sic] that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand ... [b]ut if one cannot say, with fair assurance ... that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry ... is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

Johnson, 43 S.W.3d at 4 (quotations omitted). Our state constitution requires unanimity in all felony trials. See Tex. Const. art. V, § 13. A unanimous jury verdict ensures that the jury agrees on the facts underlying an offense and not merely on the violation of a statute. Francis v. State, 36 S.W.3d 121, 125 (Tex.Crim.App.2000). The unanimity requirement is not met when a jury risks convicting the defendant on different acts instead of agreeing on the same act for conviction. Id.

The Waco Court of Appeals conducted a non-constitutional harm analysis on nearly identical facts in Wilson. Wilson, 3 S.W.3d at 226. In that case, the State’s evidence focused on two specific incidents of sexual assault for which the jury could have convicted the defendant and other general statements of abuse from the complainant for which the jury also could have convicted the defendant. Id. at 227. The Wilson court held that the failure to elect a specific offense led to a potential lack of unanimity in the verdict. See id. Consequently, the failure to elect had “more than a slight influence on the verdict” and affected the defendant’s rights sufficiently to require a new trial. Id; but see Cates, 72 S.W.3d at 696-97 (holding failure to elect with indistinct complainant testimony was harmless, without considering unanimity requirement).

The facts in the instant case present the error more succinctly. Due to the high number of incidents described by the complainant, each juror could have chosen to convict appellant based on a separate incident. The possibility that the jury convicted appellant without agreeing on a specific instance of criminal conduct had “more than a slight influence” on the verdict. Under this court’s precedent, failure to elect is constitutional error and the majority opinion correctly applies the harm analysis for constitutional error. Nevertheless, a failure to elect among multiple episodes of conduct warrants a new trial even under a non-constitutional harm analysis.

J. HARVEY HUDSON, Justice,

dissenting.

Where one act of intercourse is alleged in the indictment and more than one act of intercourse is shown by the evidence in a sexual assault trial, the general rule is that the State must elect the act upon which it will rely for conviction. O’Neal v. State, 746 S.W.2d 769, 771 (Tex.Crim.App.1988). The reason for the rule is to protect the accused (1) from the introduction of extraneous offenses, (2) from prejudice arising solely from the sheer number of alleged offenses, (3) by ensuring a unanimous verdict, and (4) by giving him notice of the particular offense upon which the State intends to rely. Phillips v. State, 130 S.W.3d 343, 349 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). These are all laudable reasons for the rule requiring an election by the State. However, “... the rule follows where its reason leads; where the reason stops, there stops the rule.”

Here, the complainant, a six-year-old child, was sexually assaulted on a regular basis. Of the approximately one hundred assaults, all took place in the complainant’s bed and all, but one, occurred at night. On account of the complainant’s minority, she could not temporally distinguish one assault from another. In light of the circumstances, what kind of election was possible? Appellant suggests the State could have elected to rely upon the one “daytime” offense. Certainly, that would have been one means of distinguishing a specific offense. However, I can find no authority to suggest that the State, due solely to the victim’s minority, must elect the one “daytime” offense to the exclusion of ninety-nine “nighttime” offenses. Moreover, the State had other means of electing a specific offense — it could, for example, have chosen the first assault, the tenth assault, the fifty-seventh assault, etc. In this regard, an election was “theoretically” possible. Thus, in “theory,” the trial court erred in refusing to compel the State to make such an election. However, appellant bears the burden of showing some actual, not just theoretical, harm. Hughes v. State, 897 S.W.2d 285, 296 (Tex.Crim.App.1994); Webber v. State, 29 S.W.3d 226, 236 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd); Johnson v. State, 981 S.W.2d 759, 764 (Tex.App.-Houston [1st Dist.] 1998, pet. refd).

Appellant suggests he was prejudiced by the possibility of a non-unanimous verdict. Unanimity in this context means that each and every juror must agree that the defendant committed the same, single, specific criminal act. Thanh Cuong Ngo v. State, No. PD-0504-04, — S.W.3d -, 2005 WL 600353, at *4 (Tex.Crim. App. Mar.16, 2005). The nature of the evidence presented here, however, defies any attempted unanimity of the verdict. The complainant testified generally about what occurred during a typical assault. She then added that she was the victim of approximately one hundred such assaults. An older victim may well have been able to distinguish one offense from another by date, some distinctive fact, some unusual bit of conversation, etc. Here, however, the victim was a very young child. If the State had “elected” to rely upon assault number twenty-nine, the jurors would have had no better means of distinguishing it from the ninety-nine extraneous assaults than did the complainant. Thus, in an abstract sense, four jurors could have convicted appellant based on the evidence offered regarding assault number forty-three, four jurors could have convicted him on the evidence of assault number sixty-nine, and four jurors could have convicted him on the evidence of assault number eighty-two because the evidence for all these assaults was the same. Because the jurors could not possibly distinguish one offense from another, unanimity of their verdict regarding a specific offense was also impossible.

Perhaps this fact alone should dictate our disposition of this case. However, unless we are prepared to say that young victims may be violated with impunity, I am not disposed to hold that the constitutional right to a unanimous verdict precludes the prosecution of cases like the one presented here. First, while the constitution requires that district court juries “be composed of twelve persons,” it does not expressly require unanimity to the degree specified in Ngo, ie., “the same, single, specific criminal act.” Ngo, — S.W.3d at -, 2005 WL 600353, at ⅞4. Likewise, no statute expressly requires this degree of unanimity.

Further, because the assaults were indistinguishable from one another, jeopardy automatically attached to every assault. Walker v. State, 473 S.W.2d 499, 500 (Tex.Crim.App.1971). Thus, appellant was not prejudiced by the danger of repeated pros-eeutions. Ex parte Goodbread, 967 S.W.2d 859, 860-61 (Tex.Crim.App.1998); Ex parte Nagle, 48 S.W.3d 213, 216 (Tex.App.San Antonio 2000, no pet.).

Had the State “elected” the first assault, the tenth assault, or the last assault, appellant would have had no greater notice of the offense upon which the State intended to rely; no greater assurance of real unanimity of the verdict; and no more meaningful limiting instruction regarding “extraneous” offenses. In short, an election under the facts presented here would not have aided appellant one whit.

I am not unmindful of our responsibility to see that appellant has had a fair trial. Further, I would favor a reversal of appellant’s conviction if a meaningful election (1) could have been made, and (2) it would have accomplished the aims alluded to in Phillips, 130 S.W.3d at 349. But such is not the case here. The harm espoused by appellant is absolutely theoretical. Appellant contends a reversal of the conviction is just, “[b]ut justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 78 L.Ed. 674 (1934). Here, a reversal of the conviction would protect no substantial or constitutional right of the accused. Accordingly, I would find the error harmless beyond any reasonable doubt.

For these reasons, I respectfully dissent.

      .The State argues it made an election. After the State’s case in chief, appellant moved to require the State to elect. Outside the presence of the jury, the State said they were relying on the events that occurred on July 4, 2002. The trial court refused appellant’s request to incorporate the election in the jury charge. The State contends the specific date in the charge and the limiting instruction regarding evidence of extraneous offenses negated the need for an election, or in the alternative, caused appellant no harm. We disagree. The application paragraph in the jury charge was not limited to an event on July 4, 2002. By its language, the charge permitted the jury to convict for any offense proved to have been committed within the ten year period prior to the filing of the indictment. We cannot hold the date of July 4, 2002 in the application paragraph, as modified by the limitations paragraph immediately preceding it, constituted an election contemplated by O’Neal v. State, 746 S.W.2d 769, 771 (Tex.Crim.App. 1988).

      . Thus, appellant preserved error by his motion to require election. O'Neal, 746 S.W.2d at 771 n. 3.

      . Case law has given four reasons for this rule: (1) to protect the accused from the introduction of extraneous evidence; (2) to minimize the risk of the jury choosing to convict based on all of the allegations together; (3) to ensure unanimous verdicts; and (4) to give the defendant notice of the particular offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend. See Phillips v. State, 130 S.W.3d 343, 349 (Tex.App.-Houston [14th Dist.] 2004, State’s pet. granted; appellant’s pet. ref'd.).

      . Texas law requires unanimous verdicts in felony criminal cases. Midence v. State, 108 S.W.3d 564, 565 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (citing Tex Const, art. V, § 13, Tex.Code Crim. Proc. Ann. art. 36.29, and Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991)).

      . The wide latitude in offense dates upon which the jury could convict based on the limitations language in the charge was emphasized by the State in its closing argument as follows:
      Young children are inexperienced and you know that, but they don’t get dates. So what the law says is, "That's fine, just within 10-years of indicting this man, you’ve got to prove that it happened.” She is only 6. The State has proven the date.

      . If wishes were horses, beggars would ride. The dissent would hold the trial court’s refusal to grant appellant’s request for an election as to the offense upon which conviction was sought was error, but harmless because the error is "purely technical,” and the "harm espoused by [appellant] is absolutely theoretical.” The dissent is not, however, writing on a clean slate; indeed, the dissent's position has no supporting authority, and conflicts with opinions from this court. We have relied, in part, on O’Neal where the court held the trial court’s refusal to grant appellant's election request until the close of all the evidence was error, but harmless error because the evidence provided notice to the appellant of the act of intercourse the State would rely upon for conviction. 746 S.W.2d at 772-73. No such specific evidence was presented here, and, because the record here did not provide Dixon with notice of the act the State would rely upon for conviction, the dissent may not base it’s position on the harmless error analysis in O’Neal. Using the dissent's analysis, Dixon was exposed to the risk the jury might choose to convict, not because one or more crimes were proven beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty. Phillips, 130 S.W.3d at 349. The dissent describes the risk of conviction based on evidence of multiple crimes not meeting the beyond-a-reasonable-doubt threshold as one of the "laudable reasons for the rule requiring an election by the State,” but cavalierly discards the risk as purely "theoretical.”

      . In Rodriguez, the court held a minor's testimony that appellant delivered cocaine to her "maybe 20 or 30 times” during the nine-month period preceding the date alleged in the indictment was not evidence of extraneous offenses. Rodriguez v. State, 104 S.W.3d 87, 91 (Tex.Crim.App.2003).

      . K. Llewellyn, The Bramble Bush at 157-58 (Dobbs Ferry, New York: Oceana, 1981).

      . See Tex. Const, art. V, § 13:
      Grand and petit juries in the District Courts shall be composed of twelve persons, except that petit juries in a criminal case below the grade of felony shall be composed of six persons; but nine members of a grand jury shall be a quorum to transact business and present bills. In trials of civil cases in the District Courts, nine members of the jury, concurring, may render a verdict, but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it. When, pending the trial of any case, one or more jurors not exceeding three, may die, or be disabled from sitting, the remainder of the jury shall have the power to render the verdict; provided, that the Legislature may change or modify the rule authorizing less than the whole number of the jury to render a verdict.

      . In Ngo, the appellant attempted to use a stolen credit card to purchase a couple of beers at a karaoke bar. Ngo, ■— S.W.3d -, 2005 WL 600353, at *1. He was charged with credit card abuse. The Legislature has broadly defined the offense of credit card abuse as being committed when a person presents or uses a credit card knowing he does not have the consent of the cardholder, knowing the card is fictitious, knowing the card is stolen, knowing the card has been revoked, etc. Ngo was indicted for credit card abuse by (1) stealing a credit card, (2) receiving a stolen credit card, and (3) fraudulently presenting a credit card to pay for goods or services. Historically, this would have been viewed as an allegation of various manner and means of committing a single offense. See Hendrix v. State, 150 S.W.3d 839, 855-58 (Tex.App.-Houston [14th Dist.] 2004, pet. pending) (Hudson, L, concurring). The rationale being that the State ought to be permitted to allege all of the various statutory violations arising in a single criminal transaction (i.e., in a single "offense”) in one indictment to meet the contingencies of evidence that might develop in trial with the view of securing but one conviction. Id.

      In light of Ngo and similar decisions by the Court of Criminal Appeals, a potential double jeopardy crisis is now brewing. See, for example, Vick v. State, 991 S.W.2d 830 (Tex. Crim.App.1999). If each manner and means of committing credit card abuse is now a separate offense for purposes of jury unanimity, then it is necessarily a separate offense for jeopardy purposes. Thus, in Ngo, for example, the appellant could be separately charged, convicted, and punished for multiple offenses of credit card abuse arising out of a single transaction. No mystical seer is needed to predict that, in time, the right of jury unanimity will be relaxed in favor of more stringent double jeopardy protections.

      . See Tex.Code Crim. Proc. Ann. art. 33.01 (Vernon 1989):
      (a) Except as provided by Subsection (b), in the district court, the jury shall consist of twelve qualified jurors. In the county court and inferior courts, the jury shall consist of six qualified jurors.
      (b) In a trial involving a misdemeanor offense, a district court jury shall consist of six qualified jurors.

      . Appellant argues the State could have elected to prosecute the one "daytime" offense to distinguish it from the ninety-nine "nighttime" offenses. Certainly, that is true, but to what advantage? Appellant does not inform us how an election of the “daytime” offense have aided him in any greater fashion than if the State had elected the twenty-seventh offense.


source: Caselaw Access Project

author: KEM THOMPSON FROST, Justice.

license: Public Domain

text:
    Reynaldo Toribio ROJAS, Appellant v. The STATE of Texas, Appellee.
    No. 14-03-01325-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 21, 2005.

      Robert A. Morrow, Spring, TX, for appellant.
    Kelly Ann Smith, Houston, TX, for ap-pellee.
    Panel consists of Justices ANDERSON, FROST, and SEYMORE.
   OPINION

KEM THOMPSON FROST, Justice.

Appellant Reynaldo Toribio Rojas was convicted of the capital murder of a four-year-old boy, resulting from a drive-by shooting. In five issues, appellant challenges his conviction alleging: (1) the evidence is legally and factually insufficient; (2) he was improperly identified by a witness; and (3) the jury was subjected to outside influence. Because appellant was a juvenile at the time of the offense, the trial court sentenced him to imprisonment for life. We affirm.

I. Factual and PROCEDURAL Background

On the evening of July 15, 1998, Alvaro Cabrera went outside his apartment to put new license plates on his vehicle. It was shortly after 7:00 p.m. and still light outside. Cabrera’s four-year-old son followed him outside. While Cabrera was working on his vehicle, his son played near a couch under the stairwell where a young man that he knew, Oscar Davalos, was visiting with several other young men and a young woman. Several of those young men were gang members.

After about ten minutes, a blue mini-van with three occupants drove rapidly into the parking lot at the apartment complex. The occupants yelled and made what appeared to be gang signs with their hands out the windows of the mini-van. Several shots were fired by the two passengers in the mini-van, and Davalos and the others quickly hid behind the couch. Davalos testified that two of the bullets hit the brick wall just above his head. Cabrera’s four-year-old son, however, did not take cover behind the couch and was the only one wounded by a bullet. The child was taken to the hospital by ambulance where he died later that evening.

Following the shooting, the mini-van reversed direction quickly and exited the parking lot. Cabrera tried to follow the mini-van. Another resident of the apartment complex, Jerardo Becerra, followed the mini-van to another apartment complex. Becerra was able to drive close enough to the mini-van to see the faces of its three occupants. Approximately five days after the incident, Becerra viewed three photographic line-ups, of five photographs each, and tentatively identified appellant as one of the passengers in the mini-van.

Shortly after the fatal shooting, appellant left by bus for Mexico and does not appear to have returned to Texas until 2002. Maria Reyes, who helped rear appellant, testified that appellant confessed he was in the mini-van and had fired one of the guns, but did not know if the bullet from his gun had killed the four-year-old boy.

II. Issues and Analysis

A. Is the evidence legally and factually sufficient to support appellant’s conviction for capital murder?

Appellant contends that the evidence is legally insufficient to support his conviction, because it fails to establish that he had the specific intent to kill a child. Appellant further contends that the evidence is both legally and factually insufficient to establish that he intended for someone to die.

In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000). The issue on appeal is not whether we, as a court, believe the State’s evidence or believe that appellants’ evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App.1991). The jury, as the trier of fact, “is the sole judge of the credibility of the witnesses and of the strength of the evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.1999). The jury may choose to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App.1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.1997).

In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481-82. Our evaluation should not intrude upon the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

1. Is the evidence legally sufficient to convict appellant of capital murder?

In his first issue, appellant contends that there is no evidence that he intended to kill a child, thus, even under a theory of transferred intent, the evidence is legally insufficient to support a conviction of capital murder. Specifically, appellant argues that capital murder requires specific intent to kill, and there is no evidence that appellant or anyone in the minivan intended to kill a four-year-old child. Appellant’s argument is based on section 19.03(a)(2) of the Texas Penal Code, which states that a person commits capital murder if the person commits murder under section 19.02(b)(1) and “the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat under [sjection 22.07(a)(1), (3), (4), (5), or (6).” Tex. Penal Code § 19.03(a)(2) (emphasis added). Appellant urges that intent to murder an adult cannot be transferred to a four-year-old child to satisfy the specific intent requirement for capital murder.

We disagree. As the State points out in its appellate briefing, the plain language of the statute for capital murder of a child under the age of six does not require appellant to have intentionally killed the child; rather, to find appellant guilty of capital murder, he need only have knowingly killed the four-year-old victim. Capital murder, as it pertains to this case, requires the following:

(a) A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and:
(8) the person murders an individual under six years of age.

Tex. Penal Code § 19.03(a)(8). Under section 19.02, a person commits murder if he, “intentionally or knowingly causes the death of an individual.” Tex. Penal Code § 19.02(b)(1) (emphasis added). Accordingly, a person commits the offense of capital murder if he intentionally or knowingly causes the death of an individual under six years of age. McCollister v. State, 933 S.W.2d 170, 172 (Tex.App.—Eastland 1996, no pet.). Thus, murder of a child under the age of six is capital murder.

Because the evidence is legally sufficient to support a conviction for murder of a child under six years of age, any lack of specific intent to kill a person under six years of age does not render the evidence legally insufficient to support appellant’s conviction for capital murder. We overrule appellant’s first issue.

2. Is the evidence legally and factually sufficient to prove that appellant intended for someone to die?

In appellant’s second and third issues, he contends that the evidence is legally and factually insufficient to establish that he intended for the victim or another person to die. Specifically, appellant contends that the evidence fails to establish that he intended a death to result from his conduct.

The offense of capital murder is committed if a person intentionally or knowingly causes the death of an individual under six years of age. Id. Pertinent to this case, “[a] person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.” Tex. Penal Code § 6.03(b).

Although witnesses saw only the front-seat passenger in the mini-van fire a gun, appellant, the back-seat passenger, confessed that he was at the scene of the murder, and that he fired his gun but did not know whether the bullet from his gun was the one that had hit the child. Furthermore, evidence recovered from the scene of the shooting established that two different guns were fired for a total of at least five shots. The record also contains evidence that this shooting was in retaliation for an earlier, gang-related shooting. The evidence supports the inference that appellant knew his shooting the gun in the general direction of a group of people including the four-year-old victim was reasonably certain to result in a death. We overrale appellant’s second and third issues.

B. Did the trial court err in denying appellant’s motion to suppress the in-court identification based on allegedly impermissibly suggestive photographic line-ups?

In his fourth issue, appellant contends that the trial court erred in denying his motion to suppress Jerardo Becerra’s in-court identification of appellant. Specifically, appellant argues that the trial court should have excluded this evidence because it was tainted by an unduly suggestive photographic line-up identification given that (1) Becerra knew that the police suspected one of the men in each of the three photographic line-ups as being the men in the mini-van fleeing from the murder scene, and (2) appellant stood out from the others in the photographic line-ups.

Becerra lived in the apartment complex where the shooting took place. He testified that on July 15, 1998, he heard some shots while in his second-floor apartment. Becerra then ran outside and saw three men in a mini-van, the front passenger in possession of a pistol. He saw the man fire the pistol and then pursued the minivan in his truck for several miles to another apartment complex, where the police took over. During the pursuit, Becerra pulled up along side the mini-van and observed the driver and one side of the backseat passenger.

On July 20, 1998, Becerra was asked to view three photographic line-ups of five photos each. The photographs were all of young males of similar race, height, build, and hair design. Becerra tentatively identified the fifth photograph in one of the spreads, the photograph of appellant, as the back-seat passenger in the mini-van. In the photo spread, appellant was the only one with this head tilted upward. The others were either looking straight ahead or downward.

In court, Becerra initially testified that the police told him that the suspects’ photos were in the photographic line-ups. Shortly thereafter, Becerra testified that he was never told that the suspects were definitely in the photographic line-ups. Becerra’s further testimony as to whether the police officer told him that the suspect’s photograph was in the photographic line-ups continued to vary. The police officer, Hector Riojas, who had conducted the photographic line-ups, testified that he had no specific recollection of what was told to appellant during the line-up over five years before trial. However, Officer Riojas testified that his standard procedure was to explain to the witness that the suspect may or may not be in the line-up. Homicide Detective Jose Selvera, who was present during the photographic line-ups, testified that he specifically remembered that appellant was not told that suspects were in the photographic line-ups.

On appeal, appellant contends that the trial court erred in denying his motion to suppress Becerra’s in-court identification of appellant because it was tainted by an impermissibly suggestive pretrial photographic line-up identification of appellant. To warrant the exclusion of Becerra’s in-court identification, appellant had to show that the photographic line-up identification procedure was impermissibly suggestive. Santos v. State, 116 S.W.3d 447, 451, 455 (Tex.App.—Houston [14th Dist.] 2003, pet. ref'd). A pretrial procedure may be suggestive, but that does not necessarily mean it is impermissibly so. Barley v. State, 906 S.W.2d 27, 34 (Tex.Crim.App.1995). Suggestiveness may be created in the manner in which the pretrial identification procedure is conducted, for example, by police pointing out the suspect or suggesting that a suspect is included in the line-up. Id. at 33. A pretrial identification procedure is not impermissibly suggestive, however, merely because a witness may have believed one of the individuals in the line-up was a suspect. Harris v. State, 827 S.W.2d 949, 959 (Tex.Crim.App.1992); Abney v. State, 1 S.W.3d 271, 275 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd).

Although there was conflicting testimony as to whether Becerra knew that someone in the photographic line-ups was a suspect in the shooting, that fact did not make the photographic line-up identification impermissibly suggestive. A lineup is not rendered impermissibly suggestive simply because a witness is told that the line-up includes a suspect, because a witness would normally assume that to be the case. Harris, 827 S.W.2d at 959.

Appellant further contends that the trial court should have excluded the in-court identification because it was tainted by an unduly suggestive photographic line-up identification given that appellant allegedly stood out from the others in the photographic line-ups. Specifically, appellant argues that he was posed differently from the others in that his head was tilted higher and he was looking directly into the camera.

After review of the record and the photographic line-up therein, we find nothing that rises to the level of being impermissi-bly suggestive. The photographs are arranged in rows with three in the top row and two in the bottom row. Appellant’s photograph is the last one in the bottom row. His head is tilted upward towards the middle photograph in the first row. The individuals are all male and of similar age, race, size, build, and hair design. Nothing in the evidence suggests that any differences in the poses were intentional or for the purpose of encouraging Becerra to select appellant’s photograph. Although it may be possible to configure a photographic line-up in a way that might suggest a particular identification, we do not find that the photographic line-up in this case was impermissibly suggestive.

Even assuming the pretrial photographic line-up was suggestive, it still would be admissible because, in the totality of the circumstances, there is no substantial likelihood of misidentification. See Webb v. State, 760 S.W.2d 263 (Tex.Crim. App.1988). To determine the reliability of the in-court identification testimony under the totality of the circumstances, the following five factors should be considered:

(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witness’s degree of attention;
(3) the accuracy of the witness’s prior description of the criminal;
(4) the level of certainty demonstrated by the witness at the time of the confrontation; and
(5) the lapse of time between the alleged act and the time of the confrontation.

Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Crim.App.1999). First, we weigh these factors in a light favorable to the trial court’s ruling; then we weigh the factors, viewed in this light, de novo “against the ‘corrupting effect’ of the suggestive identification itself.” Ibarra, 11 S.W.3d at 195-96.

The record reflects that Becerra had sufficient opportunity to view the rear passenger in the mini-van. He followed the mini-van and drove up alongside it specifically to see its occupants. He saw the suspect in daylight. Although Becerra only tentatively identified appellant in the photographic line-up, he looked at fifteen photographs and never misidentified or faded to identify him. Nor did Becerra’s description of the suspect differ from appellant. Furthermore, the photographic line-up took place only five days after the fatal shooting. Thus, under the totality of the circumstances, there is nothing to suggest a substantial likelihood of misidentifi-cation could have resulted from the photographic line-up.

Furthermore, when an in-court identification is based upon knowledge independent from the allegedly improper pre-trial procedure, it is admissible. See Santos v. State, 116 S.W.3d 447, 454 (Tex.App.—Houston [14th Dist.] 2003, writ ref d.). Thus, because Becerra stated that he was able to make his in-court identification independently from the photographic line-up based on his independent recollection of seeing appellant in the mini-van, the in-court identification is admissible.

We conclude the out-of-court identification procedure was not impermissibly suggestive, the in-court identification was made independently, and there is no substantial likelihood of misidentification. Accordingly, we overrule appellant’s fourth issue.

C. Did the trial court err in denying appellant’s motion for a mistrial or new trial based on an allegedly impermissible outside influence on the jury?

In his fifth issue, appellant contends that he is entitled to a mistrial and/or a new trial based on an alternate juror inadvertently joining the jury in the jury deliberation room following the conclusion of appellant’s trial. We review the trial court’s decisions to deny a mistrial and to deny a new trial for an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999); Rent v. State, 982 S.W.2d 382, 384 (Tex.Crim.App.1998).

The record reflects that the alternate juror was in the deliberation room for approximately fifteen minutes before the mistake was realized. The alternate juror was immediately removed from the jury deliberation room, and the jury was instructed to disregard anything the alternate juror may have said and to begin deliberations again. Outside the jury’s presence and without their knowledge, the trial court questioned the alternate juror about his brief time in the jury deliberation room. Thereafter, the trial court denied appellant’s request for a mistrial. Appellant then filed a motion for a new trial. The State responded and admitted an affidavit from the jury foreperson. After fully developing the facts surrounding the unauthorized presence of the alternate juror, the trial court denied appellant’s motion for a new trial.

Article 36.22 of the Texas Code of Criminal Procedure states: No person shall be permitted to be with a jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court. Tex.Code CRiM. PROc. Ann. art. 36.22 (Vernon Supp. 2004). The purpose of this statute is to preserve the confidentiality of the jury’s deliberations so that the jurors may fully and freely discuss the case. When jurors converse with unauthorized persons about a case, injury to the accused is presumed. Alba v. State, 905 S.W.2d 581, 587 (Tex. Crim.App.1995). The State, however, may rebut this presumption of harm by showing that the case was not discussed or that nothing prejudicial to the accused was said. Id.

The record fairly demonstrates that the information did not prejudice appellant and that the State rebutted the presumption of harm. The alternate juror testified that while he was in the jury deliberation room, one of the jurors recommended a foreperson whom a couple of jurors supported and to whom none objected. Thus, the alternate had no influence over who was chosen as the foreperson. Thereafter, several jurors wanted to see the evidence again. Although the alternate supported that decision, several other jurors also supported the decision. Thus, the evidence would have been reviewed regardless of whether the alternate supported that decision. The alternate testified that while the evidence was being circulated, there were conversations amongst small groups of jurors. The alternate did not provide any answers to questions raised about the evidence. The evidence was still being circulated amongst the jurors when the alternate was removed from the jury room.

The foreperson testified in his affidavit that the jurors did not have a formal vote on the foreperson; rather, there was a general consensus that he should be the foreperson. He testified that several jurors then wanted to see the evidence, so he requested it and circulated it around the room. The foreperson testified in his affidavit that, “We never talked about the case or took a vote until after the alternate had been taken out of the jury room.” The presence of the alternate juror for fifteen minutes clearly did not prejudice appellant in that actual deliberations had not yet begun and the alternate did not influence any decisions by the jury. The same foreperson would have been chosen, and the jury would have asked to look at the evidence regardless of whether the alternate was present.

The evidence reflects that the presence of the alternate juror did not influence or prejudice any of the jurors. Accordingly, from this record, we cannot say that the trial court abused its discretion in denying appellant’s motion for mistrial and motion for a new trial. We overrule issue five.

Having overruled all of appellant’s issues, we affirm the trial court’s judgment.

      . When asked if he voted for the foreperson, the alternate juror replied,
      No, I don’t think there was a formal vote, although I did ask if-someone asked whether anyone wanted to volunteer. And nobody volunteered. And then somebody recommended somebody and there was a couple of supporting yeses and nobody raised any objections, so.
      That person was elected.


author: BOB PEMBERTON, Justice.

text:
    Erik LEONARD, Appellant, v. Greg ABBOTT, Attorney General of Texas; the Harris County-Houston Sports Authority; Harris County; and the City of Houston, Appellees.
    No. 03-03-00443-CV.
    Court of Appeals of Texas, Austin.
    July 21, 2005.
    Rehearing Overruled Aug. 17, 2005.

      Erik Leonard, Houston, TX, for appellant.
    Terence L. Thompson, Asst. Atty. Gen., General Litigation Division, Austin, TX, for Greg Abbott.
    S. Shawn Stephens, Baker & Hostetler, LLP, Houston, TX, for Harris County-Houston Sports Authority.
    Fermeen F. Fazal, Locke, Liddell & Sapp, LLP, Houston, TX, for Harris County-Houston.
    Frank E. Sanders, Assistant County Attorney, Houston, TX, for Harris County.
    Elizabeth L. Pool, City of Houston Legal Department, Houston, TX, for City of Houston.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

Appellant Erik Leonard appeals the orders of the trial court declaring Leonard a vexatious litigant and dismissing his lawsuit after he failed to furnish court-ordered security. See Tex. Civ. Prac. & Rem.Code Ann. §§ 11.001-055 (West 2002). In six issues, Leonard contends that the trial court violated his rights to due process, equal protection, and open courts, and that appellees failed to meet their burden of proof under the vexatious litigant statute. We will affirm the orders.

BACKGROUND

Leonard has a long history of filing lawsuits and appeals to contest the issuance and approval of bonds in Harris County related to the construction of new sports arenas in that locale. In August 1998, Leonard filed a pro se declaratory judgment action in Travis County District Court against the Attorney General of Texas, the City of Houston, Harris County, and the Harris County-Houston Sports Authority. The suit, cause number 98-09828, challenged the August 1998 bond issue for the construction of the baseball stadium now known as Minute Maid Park, the home of major league baseball’s Houston Astros. After the district court dismissed the suit for lack of subject-matter jurisdiction, Leonard appealed to this Court, and we affirmed. See Leonard v. Cornyn, 47 S.W.3d 524 (Tex.App.-Austin 1999, pet. denied). Leonard then unsuccessfully petitioned the United States Supreme Court for certiorari. See Leonard v. Cornyn, 531 U.S. 1081, 121 S.Ct. 783, 148 L.Ed.2d 680 (2001).

In March 2000, Leonard filed another suit in Travis County district court against the same defendants. This suit, cause number GN0-00717, requested declaratory and injunctive relief related to the bond issue for the construction of the football stadium now known as Reliant Stadium, the home of the National Football League’s Houston Texans and the Houston Livestock Show and Rodeo. On May 18, 2000, the district court dismissed Leonard’s suit for want of jurisdiction.

On May 24, 2000, in cause number GN001516, Leonard filed a virtually identical suit against the same parties in the same court. On June 8, 2000, the district court signed an order stating that “given a second opportunity to consider its jurisdiction,” it was “still of the opinion” that it lacked subject-matter jurisdiction over Leonard’s lawsuit. Leonard appealed the May 18 order to this court. We noted that Leonard’s “request for declaratory judgment in this case involves the same 1996 election, the same 1997 legislation, and the same contention that voter approval of the bonds authorized pursuant to the 1996 election is required. This suit simply attacks a different sports venue.” Because the issues Leonard raised had already been decided, we affirmed the judgment. See Leonard v. Cornyn, 2001 WL 893448, 2001 Tex.App. LEXIS 5356 (Tex.App.-Austin 2001, pet. denied); Leonard, 47 S.W.3d at 524. Leonard again unsuccessfully petitioned the United States Supreme Court for certiorari. See Leonard v. Comyn, 537 U.S. 1053, 123 S.Ct. 608, 154 L.Ed.2d 530 (2002). He then filed a motion for rehearing with the Supreme Court, which was denied in January 2003.

In December 2000, Leonard filed cause number 00-12-07633-CV in Montgomery County district court against the chairman of the Harris County-Houston Sports Authority, this time attacking the financing of a new basketball arena. That lawsuit requested a “declaration that the 2000 arena referendum set by the Harris County-Houston Sports Authority which asked voters to authorize construction of a new arena be declared void.” On May 24, 2001, the district court granted a plea to the jurisdiction and dismissed Leonard’s suit. Leonard appealed to the Beaumont Court of Appeals, which affirmed the judgment. See Leonard v. Burge, 74 S.W.Bd 135 (Tex. App.-Beaumont 2002, pet. denied).

In March 2002, Leonard filed suit against the Attorney General of Texas, the City of Houston, Harris County, and the Harris County-Houston Sports Authority in Travis County district court; cause number GN201013. Leonard again challenged the Attorney General’s approval of bonds related to construction of sports arenas in Harris County. The district court granted a plea to the jurisdiction, and Leonard again appealed to this Court. We determined that Leonard did not timely file his notice of appeal, and dismissed the appeal for want of jurisdiction. See Leonard v. Abbott, 2002 WL 31769045, 2002 Tex.App. LEXIS 8766 (Tex.App.-Austin 2002, pet. denied).

This appeal arises from two more suits that Leonard filed in January 2003, which were consolidated below. These suits named the same defendants as his previous suits and related to the same claims. In fact, Leonard admits in his pleadings that his “same request for relief has been included in one lawsuit or another continuously from August 31, 1998 through January 27, 2003. There has been no significant development between January 27, 2003, and January 28, 2003, the date of this filing.” Appellees filed a joint motion requesting that the district court declare Leonard a vexatious litigant and require security as a condition for him to continue prosecuting the suit. See Tex. Civ. Prac. & Rem.Code Ann. §§ 11.051-.055. The district court found that Leonard was a vexatious litigant, ordered him to furnish security in the amount of $80,000 within one month, and entered a prefiling order prohibiting Leonard from filing, pro se, new litigation in state court without permission of the local administrative judge. See id. §§ 11.055, .101. Leonard failed to furnish the security. In accordance with statutory requirements, the district court dismissed his lawsuit. See id. § 11.056. Leonard appeals both the order finding him a vexatious litigant and limiting future lawsuits and the order dismissing his lawsuit.

DISCUSSION

In chapter 11 of the civil practice and remedies code, the legislature struck a balance between Texans’ right of access to their courts and the public interest in protecting defendants from those who abuse our civil justice system. See id. §§ 11.001-055. Under chapter 11, a trial court may place limitations on the litigation activities of a person determined by the court to be a “vexatious litigant.” See id. § 11.101. The court may determine that the plaintiff is a vexatious litigant if the defendant demonstrates that there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant and that the plaintiff, in the seven-year period immediately preceding the date the defendant makes the motion under Section 11.051, has commenced, prosecuted, or maintained in propria persona at least five litigations, other than in small claims court, that have been finally determined adversely to the plaintiff. See id. § 11.054; Pease v. Principal Residen tial Mortg., Inc., No. 03-02-00491-CV, 2004 WL 1065639, at **4-5 2004 Tex.App. LEXIS 4279, at *14 (Tex.App.-Austin 2004, no pet.) (mem.op.). If the court determines, based on evidence presented at a hearing, that the defendant is a vexatious litigant, it must order the plaintiff to furnish security for the benefit of the moving defendant in an amount related to the costs and attorneys’ fees the defendant anticipates incurring in defending the litigation. See Tex. Civ. Prac. & Rem.Code Ann. § 11.055(a). If the plaintiff fails to furnish the court-ordered security by the time set in the order, the court must dismiss the suit. See id. § 11.056. The court may also, on its own motion or the motion of any party, enter a prefiling order prohibiting a plaintiff from filing, pro se, a new lawsuit in state court without leave of the local administrative judge. See id. § 11.101.

Constitutionality of the vexatious litigant statute

In his first and fourth issues, Leonard attacks both the finding that he is a vexatious litigant and the order requiring him to seek permission before filing new pro se lawsuits. See id. §§ 11.054, .101. Leonard argues that the statutes are unconstitutionally vague and violate his constitutional rights to due process, equal protection, and access to the courts. He also argues that the statutes are unconstitutionally vague because they do not provide a method for determining his probability of success in his lawsuit. See id. § 11.054. While not binding precedent on this Court, a Texas federal district court has determined that the vexatious litigant statute is not unconstitutionally vague. See Liptak v. Banner, No. 3:01-CV-0953-M, 2002 U.S. Dist. LEXIS 940, at *13 (N.D.Tex. Jan. 18, 2002). However, Leonard claims that the statute is vague because he could not have determined, before filing the underlying lawsuit, that there was no reasonable probability that he would prevail in the underlying case. See id.

We construe Leonard’s argument regarding the vagueness of the statute as a challenge to the constitutionality of chapter 11 as applied. See id. §§ 11.001-11.102. A statute prohibiting conduct that is not sufficiently defined is void for vagueness. In re Fisher, 164 S.W.3d 637, 655 (Tex.2005); see Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex.1998). However, as the Liptak court observed, “any person of reasonable intelligence would be able to discern that if he were to file five lawsuits in seven years, all of which were decided in favor of the opposing party, were determined to be frivolous, or met a series of other standards, he may be subject to being labeled a vexatious litigant. There is no other practical reading of the subject statute.” 2002 U.S. Dist. LEXIS 940, at *13. We agree. Chapter 11 sufficiently outlines a standard of conduct, and a core of prohibited activity is well defined therein. Id.; see Margaret S. v. Edwards, 794 F.2d 994, 997 (5th Cir.1986).

Moreover, Leonard’s own pleadings belie his claim that he could not have known he was at risk of being held to be a vexatious litigant. He acknowledges that his underlying lawsuit asserts the “same request for relief has been included in one lawsuit or another continuously from August 31, 1998 through January 27, 2003.” With the knowledge that each of these previous lawsuits has been dismissed, Leonard nonetheless filed the same pleading again. Leonard should have known that there was no “reasonable probability” of success and that he was inviting the application of the vexatious litigant statute. See Tex. Civ. Prac. & Rem.Code Ann. §§ 11.054, .101. We hold that the vexatious litigant statute is not unconstitutionally vague.

Next, Leonard argues that the statutes permitting the orders unreasonably restrict access to the judicial system in violation of the open courts provision and discriminate against pro se litigants and “the Davids who sue Goliaths.” See Tex. Const, art. 1 § 13. Article I, section 13 of the Texas Constitution provides in part that “all courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Id.; Howell v. Texas Workers’ Comp. Comm’n, 143 S.W.3d 416, 444 (Tex.App.-Austin 2004, pet. denied). “The open courts provision includes at least three separate guarantees: (1) courts must actually be operating and available; (2) the Legislature cannot impede access to the courts through unreasonable financial barriers; and (3) meaningful remedies must be afforded, ‘so that the legislature may not abrogate the right to assert a well-established common law cause of action unless the reason for its action outweighs the litigants’ constitutional right of redress.’ ” Howell, 143 S.W.3d at 444 (quoting Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 520 (Tex.1995)) (internal citations omitted). A claim of uneonstitutionality under the open courts provision will only succeed if the claimant (1) has a cognizable common-law cause of action being restricted by a statute, and (2) the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute. Rose v. Doctors Hosp., 801 S.W.2d 841, 843 (Tex.1990); Sax v. Votteler, 648 S.W.2d 661, 666 (Tex.1983). In applying this test, we consider both the statute’s general purpose and the extent to which the claimant’s right to bring a common-law cause of action is affected. Howell, 143 S.W.3d at 444; see Sax, 648 S.W.2d at 666.

Assuming without deciding that Leonard had a cognizable common-law cause of action restricted by the vexatious litigant statute, these restrictions are not unreasonable or arbitrary when balanced against the purpose and basis of the statute. The purpose of chapter eleven is to restrict frivolous and vexatious litigation. See Devoll v. State, 155 S.W.3d 498, 501 (Tex.App.-San Antonio 2004, no pet.) (statute “provides a framework for courts and attorneys to curb vexatious litigation”). It does not authorize courts to act arbitrarily, but permits them to restrict a plaintiffs access to the courts only after first making specific findings that the plaintiff is a vexatious litigant based on factors that are closely tied to the likelihood that the incident litigation is frivolous. See Tex. Civ. Prac. & Rem.Code Ann. § 11.054; Liptak, 2002 U.S. Dist. LEXIS 940, at *12-13. Although Leonard was found to be a vexatious litigant, chapter 11 and the trial court’s order did not categorically bar him from prosecuting his lawsuit, but merely required him to post security to cover appellees’ anticipated expenses to defend what the circumstances would reasonably suggest is a frivolous lawsuit. See Tex. Civ. Prac. & Rem.Code Ann. § 11.055. Additionally, the prefiling order does not preclude Leonard from filing new lawsuits; he is merely required to obtain permission from the local administrative judge before filing. See id. §§ 11.101, .102. The restrictions are not unreasonable when balanced with the significant costs of defending Leonard’s likely frivolous lawsuits in the future.

Moreover, the statute does not discriminate against pro se litigants or “the Davids who sue Goliaths.” Leonard complains that because only pro se litigants, and not other individuals such as attorneys are subjected to the vexatious litigant statute, his equal protection rights were violated. An equal protection claim is not limited to members of a large class, but can be brought by a “class of one,” where the plaintiff alleges that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); see also Allegheny Pittsburgh Coal Co. v. County Commission of Webster County, 488 U.S. 336, 345-46, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989). “ ‘The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.’ ” Olech, 528 U.S. at 564, 120 S.Ct. 1073 (quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445, 43 S.Ct. 190, 67 L.Ed. 340 (1923) (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352, 38 S.Ct. 495, 62 L.Ed. 1154 (1918))). Assuming without deciding that Leonard could bring an equal protection claim because he is within a class of pro se litigants, or in a class by himself, we find that the statute does not implicate his constitutional right to equal protection. Attorneys are subject to sanctions in various forms, including monetary sanctions pursuant to rule 13. See Tex.R. Civ. P. 13. Similarly, pro se litigants are subject to chapter 11 of the civil practice and remedies code. Leonard alleges that he was found to be a vexatious litigant and his right to equal protection was violated because unlike appellees, he does not have financial or political resources. To the contrary, the record demonstrates that Leonard was adjudicated a vexatious litigant because the trial court found that he met the statutory requirements under chapter 11 of the civil practice and remedies code. Chapter 11 does not unlawfully discriminate against pro se litigants or violate Leonard’s constitutional right to equal protection. We overrule Leonard’s first and fourth issues.

Vexatious litigant order

In Leonard’s second issue, he argues that there is insufficient evidence that he filed five lawsuits that were finally determined adversely to him, as required by section 11.054(1), or, alternatively, that he repeatedly relitigated or attempted to re-litigate, pro se, prior litigation, as required by section 11.054(2). See Tex. Civ. Prac. & Rem.Code § 11.054.

Under chapter 11 of the civil practice and remedies code, as previously noted, a trial court “may find a plaintiff a vexatious litigant” if certain statutory elements are met. Tex. Civ. Prac. & Rem. Code Ann. § 11.054 (emphasis added). The legislature’s use of the term “may” denotes that the court has discretion, once it has made the required statutory findings, to declare a party a vexatious litigant. See Devoll, 155 S.W.3d at 502 (reviewing chapter eleven issues under abuse of discretion standard); see also Tex. Gov’t Code Ann. § 311.016 (West 2005) (“ ‘may’ creates discretionary authority or grants permission or a power”); cf. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998) (declaratory judgment act gives trial court discretion in ultimate decision of whether to award attorney fees). Accordingly, we review the trial court’s ultimate determination that Leonard is a vexatious litigant under an abuse of discretion standard. See Devoll, 155 S.W.3d at 502. It is an abuse of discretion for a trial court to rule arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. See Bocquet, 972 S.W.2d at 20.

However, because a trial court may exercise its discretion to declare a party a vexatious litigant only if it first makes prescribed statutory evidentiary findings, we also review the trial court’s subsidiary findings under chapter 11 for legal and factual sufficiency. Cf. Bocquet, 972 S.W.2d at 21 (addressing analogous issue under declaratory judgment act); Tex. Civ. Prac. & Rem.Code Ann. § 11.054. Leonard attacks only this aspect of the trial court’s finding that he was a vexatious litigant. In reviewing a legal sufficiency challenge, the no-evidence challenge fails if there is more than a scintilla of evidence to support the finding. See BMC Software Belgium, N.V. v. Mar-chan!, 83 S.W.3d 789, 795 (Tex.2002); Tempest Broadcasting Corp. v. Imlay, 150 S.W.3d 861, 868 (Tex.App.-Houston [14th Dist.] 2004, no pet.). In reviewing a factual sufficiency challenge, we set aside the trial court’s decision only if its ruling is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Imlay, 150 S.W.3d at 868.

As detailed in the background section, in the seven-year period immediately preceding appellees’ April 14, 2003 motion, Leonard has commenced, prosecuted, and maintained in propria persona at least five litigations, other than in a small claims court, that have been finally determined adversely to him. Although Leonard argues that one lawsuit should not be included as one of five litigations that was finally determined adverse to his interests because it was an election contest, we disagree. A review of Leonard’s pleadings in that case, a certified copy of which was attached to appellees’ motion, reveals that he requested a declaration that the referendum authorizing construction of a new arena be declared void. In any event, the statute only excludes litigation filed in small claims court, not election contests filed in a district court. See Tex. Civ. Prac. & Rem.Code Ann. § 11.054(a) (West 2002). Certified copies of the pleadings and orders were attached to appellees’ motion to declare Leonard a vexatious litigant. The five lawsuits are the following cause numbers: (1) 98-09828, dismissed by the district court for lack of subject-matter jurisdiction and affirmed on appeal by this Court; (2) GN0-00717, dismissed for lack of subject-matter jurisdiction; (3) GN001516, dismissed by the district court for lack of subject-matter jurisdiction and affirmed on appeal by this Court; (4) 00-12-07633-CV, dismissed by the district court for lack of subject-matter jurisdiction and affirmed on appeal by the Beaumont Court of Appeals; and (5) GN201013, dismissed by the district court for lack of subject-matter jurisdiction and dismissed for want of jurisdiction by this Court on appeal. After filing these five suits, all of which were dismissed on jurisdictional grounds and finally determined adverse to him, Leonard filed the two underlying suits in this case on the very same grounds, as he admits in his petitions. There is more than a scintilla of evidence to support the finding that Leonard met the requirements of section 11.054(1), and that finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We hold that there was factually and legally sufficient evidence that appellees met their burden of proof and that the trial court did not abuse its discretion. See id. § 11.054(a)(1). We overrule Leonard’s second issue.

No reasonable probability that Leonard would prevail

In his third issue, Leonard argues that appellees failed to show there was no reasonable probability that he would prevail in this lawsuit. We disagree. Again, Leonard admitted in his pleadings that this lawsuit contains the “same request for relief has been included in one lawsuit or another continuously from August 31, 1998 through January 27, 2003.” With the knowledge that each of these previous lawsuits has been dismissed on jurisdictional grounds, that appellees are generally entitled to sovereign immunity, and that the bonds are generally incontestible at this point, Leonard filed the same pleading again. Appellees met their burden of showing that there was no reasonable probability that Leonard would prevail. See id. § 11.054. We overrule Leonard’s third issue.

Limitation on oral argument time

In his fifth issue, Leonard complains that the trial court violated his right to due process by limiting his time to present oral argument at the hearing on his motion for extension of time to furnish security and appellees’ motion to dismiss. Both motions were heard on June 19, 2003. The trial court has wide discretion in fixing the time allowed for oral argument and granting motions for an extension of time. See Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 600 (1953); Siddiqui v. Yellow Freight Sys., Inc., No. 03-98-00517-CV, 2000 WL 1433650, at *7, 2000 Tex.App. LEXIS 6568, at *20-21 (Tex.App.-Austin 2000, pet. denied) (not designated for publication); see also Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex.2002). In his motion for extension of time, Leonard argued that he could not afford to furnish the security and would “be too busy challenging the order to furnish the security to raise money soon.” However, the trial court allowed Leonard to present oral argument that ultimately constituted six pages of the transcript. We hold that, under the circumstances presented in this case, the trial court did not abuse its discretion by limiting the time for oral argument or denying the motion for extension of time for furnish the security. We overrule Leonard’s fifth issue.

Dismissal with prejudice

In his sixth issue, Leonard argues that his suit should not have been dismissed with prejudice. However, the error in dismissing a case with prejudice cannot be raised for the first time on appeal and must be presented to the trial court. See Bird v. Komman, 152 S.W.Sd 154, 161 (TexApp.-Dallas 2004, no pet.); Andrews v. ABJ Adjusters, Inc., 800 S.W.2d 567, 568-69 (TexApp.-Houston [14th Dist.] 1990, writ denied). To complain about an error in the judgment rendered, Leonard was required to present the error to the trial court in a timely post-judgment motion such as a motion to alter or correct the judgment or a motion for new trial. See Arthur’s Garage, Inc. v. Racalr-Chubb Sec. Sys., Inc., 997 S.W.2d 803, 816 (TexApp.-Dallas 1999, no pet.). The final judgment dismissing Leonard’s claims with prejudice was signed June 19, 2008. On July 28, 2003, Leonard filed a First Supplemental Motion for New Hearing, arguing for the first time that the case should have been dismissed without prejudice. The supplemental motion, however, was not timely filed within thirty days of the judgment and therefore cannot be considered. See Tex.R. Civ. P. 329b; Bank of Tex., N.A. v. Mexia, 135 S.W.3d 356, 359 (TexApp.-Dallas 2004, pet. denied). Although Leonard appears pro se, he must comply with the relevant rules of procedural and substantive law. See Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Strange v. Continental Cas. Co., 126 S.W.3d 676, 677-78 (TexApp.-Dallas 2004, pet. denied). Because the issue was not timely presented to the trial court, it was waived. We overrule Leonard’s sixth issue.

CONCLUSION

Having overruled all of Leonard’s issues, we affirm the orders of the district court.

      . The amount of $80,000 was requested by appellees, and derived from the amount of attorneys’ fees they had spent defending Leonard’s prior lawsuits. From July 2000 through April 2003, the Sports Authority alone incurred bills in excess of $190,000 in defending against Leonard’s lawsuits.

      . Leonard's due process claim is predicated on his theory that the statute is unconstitutionally vague. The vagueness doctrine is a component of the Constitution's due process guarantee. Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex.1998).

      . Leonard summarily recites that there "was no inquiry into the question of whether [he] abused the judicial system in any way.” But he acknowledges that the "statute does not require such inquiry” and that "appellees did not call for such inquiry,” and alleges only that his constitutional rights were violated.

      . Leonard acknowledges in his brief that the statute protects defendants by requiring plaintiffs to furnish security for defendants’ expenses.

      . Furthermore, because the "election lawsuit” was properly included, Leonard’s due process rights, if any, were not "violated by the trial court’s not timely ruling on [his] motion not to count one of the lawsuits.”

      . We do not reach the issue of whether appel-lees met their burden under another section of the statute. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054(2) (West 2002).

      . The bonds are "valid and incomestible in a court or other form and are binding obligations for all purposes according to their terms: (1) after the public security is approved by the attorney general and registered by the comptroller; and (2) on issuance of the .public security.” Tex. Gov’t Code Ann. § 1202.006 (West 2000). Appellees argue that, under this section, Leonard's claims are moot. Because the vexatious litigant finding will affect Leonard in the future, we address the merits of this issue.

      . Leonard's original motion for new trial was filed in May 2003 in response to the vexatious litigant order, a month before the trial court dismissed his claims with prejudice after Leonard did not furnish the required security.