Carlos Andres Sepulveda v. State

NUMBER 13-07-627-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CARLOS ANDRES SEPULVEDA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 27th District Court
of Bell County, Texas

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Vela
Memorandum Opinion by Justice Vela

A jury convicted appellant, Carlos Andres Sepulveda, of aggravated sexual assault

of a child and sentenced him to fifty years’ imprisonment. TEX . PENAL CODE ANN . § 22.021

(Vernon Supp. 2008). In five issues, he argues (1) the trial court erred in denying his

requested instruction for a lesser-included offense, (2) the State erred in bolstering its
witnesses, (3) trial counsel was ineffective, and (4) the trial court erred in denying his

motion for a mistrial. We affirm.

I. BACKGROUND

Nine-year-old K.H. lived with her mother, R.H. On March 25, 2006, appellant came

to their home to repair a car. Afterwards, he, R.H., and K.H. went into the living room to

watch a movie. While watching the movie, R.H. was sitting in a rocking chair, and K.H. and

appellant were sitting on the couch. K.H. had her legs “propped up” on appellant’s legs,

and she had a blanket covering her body. K.H. testified that appellant “start[ed] to rub my

thigh right there, and then like close to the end he put his hand in my underwear and

started playing around in there.” By “playing around,” she meant, “Like, touching me and

all that.” When the prosecutor asked K.H. where appellant had touched her, she replied,

“In my vagina.” When the prosecutor asked her, “What did he do with his finger, [K.H.]?”,

she said, “He moved it around in there.” In response to that answer, the prosecutor asked

her, “And are you talking about your vagina?”. To this, she replied, “Yes, ma’am.” K.H.

testified that after appellant left the house, she told her mother that appellant “was playing

around in my private.”

R.H. testified that when appellant left, K.H. told her that appellant had touched her

“In . . . [her] private.” When the prosecutor asked R.H., “Did [K.H.] tell you what he

[appellant] did with his finger?”, R.H. replied, “She told me that he had put his finger in her

vagina.” When the prosecutor asked R.H., “She [K.H.] uses the word that he played

around down there. Is that what she told you?”, R.H. answered, “Yes, ma’am.” To clarify,

the prosecutor asked R.H.:

Q. Whether she [K.H.] used those words or not, were you clear that what
this defendant had done is put his fingers in her vagina?

2
 A. Yes, ma’am.

Q. That is what your daughter told you?

A. Yes, ma’am.

The day after the incident, K.H. was examined by Deborah Kleypas, a sexual

assault nurse examiner. Kleypas testified that: “[K.H.] told me that a guy had touched her

privates, and she—her front privates with his fingers. And when I am talking to children,

I also have a body diagram and she pointed to the genital area on the body diagram and

told me in that area.” Kleypas performed a detailed genital exam on K.H. She testified that

K.H.’s “outside labia majora and inside were very red.” When the prosecutor asked

Kleypas, “So inside the labia majora there was also redness.”, she replied, “Yes, sir.” Next,

the prosecutor asked her, “And was that, based on your training and experience, consistent

or inconsistent with a male inserting his fingers into her vagina?” She replied, “Her redness

could be consistent with her history about what happened.” The prosecutor then asked

her, “So it was consistent with her story.” She replied, “Yes, sir, it was.”

The defense rested without calling any witnesses.

II. DISCUSSION
A. Lesser-Included Offense

In his first issue, appellant argues the trial court erred in denying his request for a

jury charge instruction on the lesser-included offense of indecency with a child.1 At the

charge conference, the trial court denied appellant’s request for the lesser-included offense

of indecency.

When evaluating charge error, we first determine whether there was error in the

charge. Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g).

1
See TEX . PENAL CODE ANN . § 21.11 (Vernon 2003).
3
If so, “the next step is to make an evidentiary review . . . as well as a review of any other

part of the record as a whole which may illuminate the actual, not just theoretical, harm to

the accused.” Id.

Under the code of criminal procedure, an offense is a lesser-included offense if: (1)

“it is established by proof of the same or less than all the facts required to establish the

commission of the offense charged”; (2) “it differs from the offense charged only in the

respect that a less serious injury or risk of injury to the same person, property, or public

interest suffices to establish its commission”; (3) “it differs from the offense charged only

in the respect that a less culpable mental state suffices to establish its commission”; or (4)

“it consists of an attempt to commit the offense charged or an otherwise included offense.”

TEX . CODE CRIM . PROC . ANN . art. 37.09 (Vernon 2006). The court of criminal appeals has

clarified the method for determining whether the allegation of a greater offense includes

a lesser offense. See Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). The

Hall court phrased the issue as “whether ‘the facts required’ in Article 37.09(1) are

determined by the evidence adduced at trial, or whether the determination is a question

of law that can be answered before the trial begins by looking at the elements and facts

alleged in the charging instrument.” Id. at 531. The Hall court held that the “pleadings”

approach is the sole test for determining in the first step whether a party may be entitled

to a lesser-included offense instruction. Id. at 535. In describing this “cognate-pleadings”

approach, the Hall court stated that a “court looks to the facts and elements as alleged in

the charging instrument, and not just to the statutory elements of the offense, to determine

whether there exists a lesser-included offense of the greater charged offense.” Id. at 526.

The availability of a lesser-included instruction in a given case depends on the second

step, whether there is some evidence adduced at trial to support such an instruction. Id.
4
at 535.

The first step in the lesser-included-offense analysis, determining whether an

offense is a lesser-included offense of the alleged offense, is a question of law. Flores v.

State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008). It does not depend on the evidence

to be produced at trial. Id. It may be, and to provide notice to the defendant must be,

capable of being performed before trial by comparing the elements of the offense as they

are alleged in the indictment or information with the elements of the potential lesser-

included offense. Hall. 225 S.W.3d at 535-36.

The evidence adduced at trial remains an important part of the trial court's decision

whether to charge the jury on lesser-included offenses. Id. at 536. The second step in the

analysis asks whether there is evidence that supports giving the instruction to the jury. Id.

A defendant is entitled to an instruction on a lesser-included offense when the proof for the

offense charged includes the proof necessary to establish the lesser-included offense and

there is “some evidence” in the record that would permit a jury rationally to find that if the

defendant is guilty, he or she is guilty only of the lesser-included offense. Id. at 536. In

this step of the analysis, anything more than a scintilla of evidence may be sufficient to

entitle a defendant to a lesser charge. Id. In other words, the evidence must establish the

lesser-included offense as “‘a valid, rational alternative to the charged offense.’” Id. at 536

(quoting Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999)).

Applying the first step of the lesser-included-offense analysis, we do not consider

the evidence that was presented at trial. Id. Instead, we consider only the statutory

elements of aggravated sexual assault of a child as they were modified by the particular

allegations in the indictment. See id. In this case, the indictment alleged, in relevant part:

(1) “Defendant”; (2) “intentionally or knowingly”; (3) “cause[d] the penetration of the female
5
sexual organ of [K.H.]”; (4) “a child who was then and there younger than 14 years of age

and not the spouse of the defendant”; (5) “by placing Carlos Andres Sepulveda’s finger in

[K.H.’s] female sexual organ.” We now compare these charged elements with the

elements of the offense of indecency with a child that could be included in that offense.

Id. Section 21.11–Indecency With a Child–provides, in relevant part:

(a) A person commits an offense if, with a child younger than 17
years and not the person’s spouse, whether the child is of the same
or opposite sex, the person:

(1) engages in sexual contact with the child or causes the child to
engage in sexual contact; or

(2) with intent to arouse or gratify the sexual desire of any person:

(A) exposes the person’s anus or any part of the person’s
genitals, knowing the child is present; or

(B) causes the child to expose the child’s anus or any part of
the child’s genitals.

***

(c) In this section, “sexual contact” means the following acts, if
committed with the intent to arouse or gratify the sexual desire of any
person:

(1) any touching by a person, including touching through clothing, of
the anus, breast, or any part of the genitals of a child; or

(2) any touching of any part of the body of a child, including touching
through clothing, with the anus, breast, or any part of the genitals of
a person.

TEX . PENAL CODE ANN . § 21.11(a) (Vernon 2003). In this case, the offense of indecency

with a child contains one element that was not explicitly charged in this indictment: the

intent to arouse or gratify the sexual desire of any person. See TEX . PENAL CODE ANN . §§

6
21.01(2),2 21.11(a)(1) (Vernon 2003 & Supp. 2008).

The elements of aggravated sexual assault of a child as alleged in the indictment

do not conclusively establish an intent by appellant to arouse or gratify the sexual desire

of any person. The crime as alleged could have been committed solely with an intent to

violate K.H., without any concomitant intent to satisfy a sexual desire. The legislature has

classified the offense of aggravated sexual assault of a child not as a sexual offense but

as an assaultive one. Compare TEX . PENAL CODE ANN . § 21.11 (Vernon 2003) (classifying

indecency with a child among the sexual offenses against the person), with § 22.021

(Vernon Supp. 2008) (classifying aggravated sexual assault among the assaultive offenses

against the person). Without looking at the evidence in the case, it is impossible to say

that intent to arouse or gratify the sexual desire of a person may necessarily be deduced

from the alleged act of appellant penetrating K.H.’s female sexual organ with his finger.

We then ask the question that article 37.09(1) poses: are the elements of the

purported lesser offense “established by proof of the same or less than all the facts

required to establish the commission of the offense charged[?]” TEX . CODE CRIM . PROC .

ANN . art. 37.09(1) (Vernon 2006). We hold that in the instant case, the elements required

to prove indecency with a child are not the same as, or less than those required to prove

aggravated sexual assault of a child as alleged in the indictment. Therefore, appellant's

requested instruction does not satisfy the first prong of the Hall test.

Even assuming that under this indictment, indecency with a child is a lesser-included

offense of aggravated sexual assault of a child, we do not find sufficient evidence in the

2
Section 21.01(2) of the penal code states: “‘Sexual contact’ m eans, except as provided by Section
21.11, any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or
gratify the sexual desire of any person.” T EX . P EN AL C OD E A N N . § 21.01(2) (Vernon Supp 2008).
7
record to support the instruction. In the second step of a lesser-included-offense analysis,

we must examine the evidence adduced at trial to determine if there was some evidence

to support instructing the jury on the lesser-included offense. Hall, 225 S.W.3d at 536.

There is no evidence in the record that would permit a jury rationally to find appellant was

guilty only of indecency with a child. When the prosecutor asked K.H., “Where was he

[appellant] touching you?”, she replied, “In my vagina.” When the prosecutor asked, “What

did he [appellant] do with his finger, [K.H.]?”, she answered, “He moved it around in there.”

When the prosecutor asked her, “And are you talking about your vagina?”, she said, “Yes,

ma’am.” R.H. testified that K.H. said that appellant touched her “In my private.” When the

prosecutor asked R.H., “Did [K.H.] tell you what he [appellant] did with his finger?”, R.H.

replied, “She told me that he had put his finger in her vagina.” Kleypas testified that she

found “redness” inside K.H.’s labia majora. When the prosecutor asked Kleypas, “And was

that [redness], based on your training and experience, consistent or inconsistent with a

male inserting his fingers into her [K.H.’s] vagina?”, she replied, “Her redness could be

consistent with her history about what happened.”

Appellant calls our attention to K.H.’s testimony that he “started playing around in

there.” When the prosecutor asked K.H. what she meant by “playing around,” she said,

“Like touching me and all that.” Appellant also calls our attention to the testimony of

Kleypas, who testified that K.H. told her that “a guy had touched her privates, and she—her

front privates with his fingers.” These statements, however, are not evidence appellant is

guilty only of indecency with a child. Furthermore, these statements are not evidence that

penetration did not occur. Case law has established that the slightest penetration of the

female sexual organ is sufficient to prove penetration even though the vagina is not

entered. See Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) (holding that
8
slightest penetration of female sexual organ is sufficient to prove penetration even though

vagina not entered); Sherbert v. State, 531 S.W.2d 636, 637 (Tex. Crim. App. 1976).

Therefore, the testimony relied upon by appellant is not such as would cause a jury to

rationally conclude that appellant only touched K.H.’s genitals, but did not actually put his

finger in her female sexual organ. Appellant has not demonstrated that there is any

evidence in the record that, if he is guilty, he is guilty of only indecency with a child and not

aggravated sexual assault of a child. We conclude appellant was not entitled to an

instruction on the lesser-included offense. Thus, we hold that appellant has not offered

more than a scintilla of evidence in favor of the requested instruction, and therefore was

not entitled to a lesser charge on indecency with a child under the second prong of Hall.

Issue one is overruled.

B. Improper Bolstering

In his second issue, appellant argues the prosecutor committed error in bolstering

the testimony of the State’s witnesses during its case-in-chief and during its guilt-innocence

closing argument. “Bolstering occurs when one party introduces evidence for the purpose

of adding credence or weight to earlier unimpeached evidence offered by that same party.”

Rousseau v. State, 855 S.W.2d 666, 681 (Tex. Crim. App. 1993) (citing Guerra v. State,

771 S.W.2d 453, 474 (Tex. Crim. App. 1988)); Mumphrey v. State, 155 S.W.3d 651, 656

(Tex. App.–Texarkana 2005, pet. ref’d). In Cohn v. State, the court of criminal appeals

defined bolstering as:

any evidence the sole purpose of which is to convince the factfinder that a
particular witness or source of evidence is worthy of credit, without
substantively contributing “to make the existence of [a] fact that is of
consequence to the determination of the action more or less probable than
it would be without the evidence.” Accordingly, evidence that corroborates
another witness’ story or enhances inferences to be drawn from another
source of evidence, in the sense that it has an incrementally further tendency

9
 to establish a fact of consequence, should not be considered “bolstering.”

Cohn v. State, 849 S.W.2d 817, 819-20 (Tex. Crim. App. 1993) (emphasis in original,

citation omitted). “Regardless of whether a witness is impeached, additional evidence to

the same effect is not ‘bolstering’ if . . . it makes any substantive contribution or

incrementally tends to further a fact of consequence.” Briones v. State, 12 S.W.3d 126,

129 (Tex. App.–Fort Worth 1999, no pet.).

1. Whether Improper Bolstering Occurred During The Case-In-Chief

Appellant argues the prosecution called Officer Reese Davis and R.H. who “were

used to bolster the testimony of other witnesses.” We will separately discuss the testimony

of Officer Davis and R.H.

a. Testimony of Officer Davis

Appellant directs our attention to several pages of Officer Davis’s testimony and

argues the prosecution used this testimony to improperly bolster the testimony of other

witnesses. Officer Davis was the lead investigator in this case and had attended “kinesic

interview schools” sponsored by the Killeen Police Department. He testified in detail about

how a criminal case is investigated before it is presented to the district attorney’s office.

When the prosecutor asked Officer Davis, “In your investigations do you take—especially

investigations of this sort, do you take extreme measures to make sure that you are as

thorough and accurate as you can be?”, he replied, “Yes, sir.” At this point, counsel

objected that the prosecutor was “trying to bolster his own witness with all those words like

‘extreme measures,’ et cetera.” The trial court sustained the objection. Officer Davis

testified that in this case, he: (1) reviewed the statement which R.H. wrote for K.H.; (2)

reviewed the sexual assault nurse examiner’s report; and (3) reviewed Officer April

10
Johnson’s video-taped interview3 of K.H. With respect to what Officer Davis heard and saw

in the video-taped interview, he answered, “No, sir,” when the prosecutor asked him: (1)

“At any point during the interview of [K.H.] on the tape did—was she led in any way?”; (2)

“Did you hear, based on your training and experience, that she had some kind of agenda

other than telling what happened to her?”; and (3) “Did she exhibit any bias against the

defendant other than for what he did on March 25, 2006?”. When the prosecutor asked

him, “Did she appear to, based on your training and experience, act appropriately during

that interview?”, he replied, “Yes, sir.”

After questioning Officer Davis about the video-taped interview, the prosecutor

asked him, “Did you go into her [K.H.’s] background with her mother?” and “[D]uring your

investigation did she indicate any other suspect than this defendant?”. Officer Davis

replied, “No, sir” to both questions.

Our review of the record does not indicate that K.H.’s testimony stood unimpeached.

Defense counsel cross-examined K.H. about her claim that appellant assaulted her while

she, R.H., and appellant were in the living room watching a movie.4 Counsel also cross-

3
The State did not introduce the video-taped interview into evidence.

4
On cross-exam ination, defense counsel asked K.H.:

Q. All right. And your m other was sitting there in the— I believe the living room while he
[appellant] m essed around in your private part; is that right?

A. Yes, m a’am . Yes, sir.

Q. And she didn’t notice it?

A. No, sir.

Q. Okay. Did she ever stand up and go to another room while this was happening or—

A. No, sir.

Q. How long did this— was he playing around with it?

A. I don’t know.
11
examined K.H. about her motive for accusing appellant of the assault.5 Thus, Officer

Davis’s testimony was not impermissible bolstering because before he testified, defense

counsel had impeached K.H. (1) about how appellant could have sexually assaulted her

while her mother was present in the same room, and (2) by insinuating that the reason K.H.

accused appellant of sexually assaulting her was because appellant had scolded her.

Thus, the State was entitled to rehabilitate K.H.’s credibility, and Officer Davis’s testimony

was not improper bolstering. See Skeen v. State, 96 S.W.3d 567, 578 (Tex.

App.–Texarkana 2002, pet. ref’d) (“Testimony elicited to rebut prior impeachments by

opposing counsel is not considered improper bolstering.”).

Q. Okay. W ell, m ore than— do you know what a m inute Can [sic] you tell m e what a
m inute is?

A. Sixty seconds.

Q. All right. Do you think it is m ore than 60 seconds[?]

A. Yes, sir.

Q. W as it, like, five m inutes?

A. I wouldn’t know.

5
On cross-exam ination, defense counsel asked K.H.:

Q. Okay. Now you also got m ad at him [appellant] one tim e, didn’t you, when he was
scolding you? Do you know what “scolding” m eans?

A. Yes, sir.

Q. He fussed at you about som ething once, didn’t he?

A. No, sir.

Q. Never?

A. No, sir.
12
 Appellant also calls our attention to Officer Davis’s testimony about the “process

called kinesic interview.”6 Appellant argues that Officer Davis “testified that he watched the

video taped interview of K.H. to determine if the story of the two sides ‘matched just

perfectly.’”7 Appellant then states that “[t]he entire line of testimony was used to bolster the

investigating officers’ testimony.”

Other than Officer Davis, there were two other investigating officers involved in this

case—Hal Williams and April Johnson—both of whom were police officers with the Killeen

Police Department. Officer Williams testified that he was dispatched to Darnall Hospital

where he met with Fort Hood criminal investigator Christopher Aston,8 who advised him

that “the juvenile was sexually assaulted in the city of Killeen.” Officer Williams testified

that the “criminal investigator” identified appellant as the suspect. After Officer Williams

6
Officer Davis described the kinesic interview process as follows:

[I]n the kinesic interview process, what you’re trained to do is basically set
a norm on the individual that you are talking to. M ost of us are parents in
here so, I guess, the easiest way is to use a parenting exam ple. W e know
when our children are not telling us the truth because we have lived with
them and we— you know, you can just look at their eye m ovem ent and say,
okay, this child, m y child is not telling m e the truth and this is why. W ell,
when we do kinesic interview techniques, you will watch a person. You
establish a norm with them , and then when you start talking to them and
hitting the high point about an offense or an incident that occurred, som e of
their body language is going to change. And that is kind of just a highlight
of that.

W hen the prosecutor asked him , “So it’s, basically for the laym en, you exam ine their body language . . . m ake
sure that it’s appropriate with the story you are being told[?]”, he replied, “Yes, sir.”

7
This statem ent is partially correct. Officer Davis watched K.H.’s video-taped interview, but he did not
testify that he watched it to determ ine if the story of the two sides “‘m atch just perfectly.’” Rather, when the
prosecutor asked Officer Davis to “tell the jury briefly what kind of steps you go through to investigate a case
before you bring it for review to the District Attorney’s Office[,]” he stated, in relevant part:

W ell, what I instruct m y detectives to do and what I have been trained to do, the first
thing we do is we get a statem ent from the victim as to what took place. If it’s a sexual
offense, then we request that a SANE exam is done. From there we try to get a statem ent
from the person who is accused because in any type of crim inal investigation there is [sic]
two sides to every story and the stories should m atch just perfectly together. . . .

8
Christopher Aston did not testify.
13
spoke to Investigator Aston, he spoke to R.H. and K.H. and obtained a written statement

from R.H. and K.H. Afterwards, he contacted Officer Davis.

Officer Johnson interviewed K.H. about the sexual assault and testified that K.H. (1)

did not identify anyone else other than appellant as the person who had assaulted her, and

(2) was consistent with what she had told Officer Williams.

Here, we cannot say that the sole purpose of Officer Davis’s testimony was to

convince the fact-finder that the testimony of Officers Williams and Johnson was worthy

of credit. Officer Davis’s testimony incrementally tended to further establish facts of

consequence, i.e., that K.H. was sexually assaulted and that appellant was the culprit. See

Cohn, 849 S.W.2d at 820 (“evidence that corroborates another witness’ story . . . , in the

sense that it has an incrementally further tendency to establish a fact of consequence,

should not be considered bolstering”). We hold that Officer Davis’s testimony was more

than simple bolstering.

b. Testimony of R.H.

During direct-examination of R.H., the prosecutor asked her, “Has her [K.H.’s] story

ever changed about what happened to her on March 25th of 2006?” She replied, “No,

ma’am.” Appellant complains this testimony constituted improper bolstering.

Counsel did not object to this testimony and, therefore, did not preserve this

complaint for our review. See TEX . R. APP. P. 33.1(a); Dixon v. State, 2 S.W.3d 263, 265

(Tex. Crim. App. 1998) (explaining that in order to preserve error, a complainant must

make timely, specific objection and obtain an adverse ruling on objection from trial court).

Even if counsel had preserved the complaint for review, because defense counsel

impeached K.H.’s testimony, the State did not impermissibly use R.H.’s testimony to

bolster K.H.’s testimony. See Cohn, 849 S.W.2d at 820.

14
 2. Whether Improper Bolstering Occurred During The State’s Guilt-Innocence
Closing Argument

Appellant argues that improper bolstering occurred in both the beginning and final

segments of the State’s closing argument. During the State’s beginning segment, the

prosecutor made the following remarks: “Well, ladies and gentlemen, this is the moment

of truth, and that’s what I’m going to ask you to do is base your verdict on the truth because

you heard the truth from [K.H.].” Because appellant did not object and obtain any adverse

ruling9 from the trial court, he has failed to preserve error, if any. See Cockrell v. State, 933

S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding that “a defendant’s failure to object to a jury

argument or a defendant’s failure to pursue to an adverse ruling his objection to a jury

argument forfeits his right to complain about the argument on appeal”).

Later, in the State’s beginning segment of closing argument, the prosecutor argued:

“And, see, it’s real easy to say that she’s a child. Kids lie. Of course, they lie. They lie

about little things. They don’t lie about the big stuff. You all know that. Anyone who has

ever been around kids know [sic] that.” At this point, defense counsel objected: “Your

Honor, he’s going outside of the record. There is no expert on children—” The trial court

stated, “The jury will remember the evidence that they heard.” Because counsel’s

objection does not comport with the issue raised on appeal, any error is not preserved for

our review. TEX . R. APP. P. 33.1; Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App.

2005) (providing that when trial objection does not comport with issue raised on appeal,

complaint not preserved for appellate review); see also Coffey v. State, 796 S.W.2d 175,

9
“To preserve error in prosecutorial argum ent, a defendant m ust pursue to an adverse ruling his
objections to jury argum ent.” Archie v. State, 221 S.W .3d 695, 699 (Tex. Crim . App. 2007). “The essential
requirem ent is a tim ely, specific request that the trial court refuses.” Young v. State, 137 S.W .3d 65, 69 (Tex.
Crim . App. 2004). Even if the error was such that it could not be cured by an instruction to disregard, the
defendant m ust object and request a m istrial to preserve the error. Mathis v. State, 67 S.W .3d 918, 927 (Tex.
Crim . App. 2002).
15
180 (Tex. Crim. App. 1990) (holding defendant’s complaint regarding State’s closing

argument not preserved because it did not comport with objection made at trial).

When the State presented the final segment of its closing argument, the prosecutor

made these complained–of remarks to the jury:

She’s [K.H.] telling the truth. And, unfortunately, these crimes happen and
sometimes it’s one witness.

***

That was probably the most difficult day in her life was when she had to get
up on that witness stand and tell you 12 with the man that assaulted her in
the same room. But she did it. Find him guilty, give her the credibility she
deserves, and let’s move on.

Because counsel did not object to these remarks, and thus did not obtain an adverse ruling

from the trial court, he has failed to preserve error, if any, for our review. See Cockrell, 933

S.W.2d at 89. Even if counsel had objected to these remarks and obtained an adverse

ruling, the remarks did not fall outside the parameters of permissible jury argument: (1)

summation of the evidence presented at trial; (2) reasonable deductions drawn from that

evidence; (3) an answer to opposing counsel’s argument; and (4) a plea for law

enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); Moore v.

State, 233 S.W.3d 32, 37 (Tex. App.–Houston [1st Dist.] 2007, no pet.). Here, the

prosecutor’s remarks were made in response to defense counsel’s closing argument in

which he questioned K.H.’s credibility by telling the jury, “[T]hink about what she [K.H.] said,

she was obviously coached.”10 Therefore, the State’s argument was an answer to

10
W hen the prosecutor finished the beginning segm ent of his closing argum ent, defense counsel
m ade his closing argum ent, stating in relevant part:

W e’ve got a nine-year-old girl who got on the witness stand—and she’s just as pretty as a
picture— got on the witness stand and gave som e testim ony that if you listen to it, think about
what she said, she was obviously coached.

Do you rem em ber the last question the Prosecution asked of her was, W hy are you
16
opposing counsel’s argument. Issue two is overruled.

C. Ineffective Assistance of Trial Counsel

In issues three and five, appellant argues he was denied the right to effective

assistance of trial counsel. See U.S. CONST . amend. VI. Specifically, he contends counsel

failed to fully investigate the case, counsel’s health-related problems prevented counsel

from making trial objections, and counsel failed to object to improper jury argument at the

guilt-innocence and punishment phases of trial.

In analyzing claims of ineffective assistance under the Sixth Amendment, we apply

the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984), Ex parte

Ellis, 233 S.W.3d 324, 330 (Tex. Crim. App. 2007). Under this framework, appellant must

prove by a preponderance of the evidence that: (1) “‘his counsel’s performance was

deficient’”; and (2) “‘there is a ‘reasonable probability’—one sufficient to undermine

confidence in the result—that the outcome would have been different but for his counsel’s

deficient performance.’” Id. (quoting Ex parte Chandler, 182 S.W.2d 350, 353 (Tex. Crim.

App. 2005)). The Strickland standard applies to ineffectiveness claims regarding trial

counsel’s performance at both the guilt-innocence and the punishment stages of trial.

Hernandez v. State, 988 S.W.2d 770, 772-74 (Tex. Crim. App. 1999).

To establish deficient performance, appellant must show that “‘counsel was not

acting as ‘a reasonably competent attorney,’ and his advice was not ‘within the range of

competence demanded of attorneys in criminal cases.’” Id. (quoting Ex parte Chandler,

182 S.W.3d at 354). Appellant must overcome the “‘strong presumption that counsel’s

conduct fell within the wide range of reasonable professional assistance.’” Id. (quoting

doing this? It was som ething to the effect of that justice be done or that he can’t do this to
another person. Is that the word of a nine-year-old child? Think about that.
17
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). Therefore, appellant must

“‘overcome the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.’” Id. (quoting Miniel v. State, 831 S.W.2d 310, 323 (Tex.

Crim. App. 1992)). “The reasonableness of an attorney’s performance is judged according

to the ‘prevailing professional norms’ and includes an examination of all the facts and

circumstances involved in a case.” Id. (quoting Strickland, 466 U.S. at 688). We “‘must

be highly deferential to trial counsel and avoid the deleterious effects of hindsight.’” Id.

(quoting Thompson, 9 S.W.3d at 813).

Under the second part of the Strickland analysis, appellant “must establish that the

‘constitutionally deficient performance prejudiced his defense–that is, he must show that

‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.’” Id. (quoting Ex parte Chandler, 182 S.W.3d

at 354). “‘A reasonable probability is a probability sufficient to undermine confidence in the

outcome.’” Id. (quoting Strickland, 466 U.S. at 694). “When making this determination,

any constitutionally deficient acts or omissions will be considered in light of the ‘totality of

the evidence before the judge or jury.’” Id. (quoting Strickland, 466 U.S. at 695).

“In the usual case in which an ineffective-assistance claim is made, ‘the record on

direct appeal will not be sufficient to show that counsel’s representation was so deficient

and so lacking in tactical or strategic decision making as to overcome the presumption that

counsel’s conduct was reasonable and professional.’” Cannon v. State, 252 S.W.3d 342,

349 (Tex. Crim. App. 2008) (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.

2002)). When defense counsel has not been afforded an opportunity to explain his or her

actions, “an appellate court should not find deficient performance unless the challenged

conduct was ‘so outrageous that no competent attorney would have engaged in it.’”
18
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State,

57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

1. Failing To Fully Investigate

Appellant argues counsel was ineffective because he did not review K.H.’s video-

taped interview. He claims that “[h]ad defense counsel properly investigated the case, he

could have provided [appellant] with essential information which would have been valuable

for any decision he made regarding whether or not to take a plea bargain offer or to take

the case to trial.”

Ordinarily, defense counsel should make an independent investigation of the facts

of a case and not blindly rely on the veracity of his or her client’s version of facts or the

witness statements in the State’s file. McFarland v. State, 928 S.W.2d 482, 501 (Tex.

Crim. App. 1996), overruled on other grounds by Mosely v. State, 983 S.W.2d 249, 263

n.18 (Tex. Crim. App. 1998). “‘[C]ounsel has a duty to make reasonable investigations or

to make a reasonable decision that makes particular investigations unnecessary. Id.

(quoting Strickland, 466 U.S. at 691). A decision not to investigate “‘must be directly

assessed for reasonableness in all the circumstances, applying a heavy measure of

deference to counsel’s judgments.’” Id. (quoting Strickland, 466 U.S. at 691). “[W]e will

not reverse a conviction unless the consequence of the failure to investigate ‘is that the

only viable defense available to the accused is not advanced,’” and there is a reasonable

probability that, but for counsel’s failure to advance the defense, the result of the

proceeding would have been different. Id. (quoting Strickland, 466 U.S. at 694).

Even if we were to assume that defense counsel’s failure to review K.H.’s video-

taped interview fell below an objective standard of reasonableness, we are not convinced

that appellant would have accepted a plea-bargain offer, assuming one had been made,

19
but for his counsel’s ineffective investigation. Appellant has not shown that counsel’s

failure to review the videotape resulted in the failure to advance the only viable defense

available to him. We hold appellant has not established that defense counsel’s failure to

investigate rendered his assistance ineffective. See Johnston v. State, 959 S.W.2d 230,

236 (Tex. App.–Dallas 1997, no pet.) (providing that an attorney’s failure to investigate is

a basis for establishing ineffective assistance of counsel only when the presentation of

specific evidence would have benefitted defendant).

2. Counsel’s Health Problems

Appellant argues that throughout the trial, his lead counsel, Mr. Ted Potter, failed

to timely object to leading questions, hearsay, and bolstering. Appellant maintains that

Potter’s inability to hear, along with other health-related problems, prevented him from

making these objections. However, the record does not show that Potter had either

serious health-related problems11 or that he was unable to hear what was said throughout

the trial.12 The record shows that although Potter did have trouble hearing some of the

11
Appellant directs our attention to the following portions of the record:

First, during R.H.’s cross-exam ination at guilt-innocence, Potter began to ask her a question and then
told the trial court, “I’m sorry, Your Honor, losing m y voice.” After co-counsel asked her a question, Potter
resum ed cross-exam ination without losing his voice.

Second, after both sides rested and closed at guilt-innocence, Potter told the trial court, “If the State
could leave a copy of the proposed Charge [sic] right here. I can go eat som e lunch and com e back.” In
response the prosecutor stated, “W hy don’t you stick around five m inutes and then you will have it?” To which
Potter replied, “Because you’re going to see m e go into an eating fit.”

Third, during the punishm ent phase, the State called K.B., who testified appellant had sexually
assaulted her in 2002. After the alleged assault, K.B. gave a statem ent to the police. During cross-
exam ination of K.B., Potter wanted to question her about this statem ent. Potter told the trial court, “I’m having
a health problem right now, but if I could have Mr. Byrd [co-counsel] walk up and approach the witness. . . .”
Potter did not specify the nature of his health problem .

12
Appellant directs our attention to the following portions of the record:

First, during K.H.’s direct-exam ination, Potter told the trial court he did not hear K.H.’s answer to a
question. W hen the prosecutor told K.H. to “say it a little bit louder,” K.H. repeated her answer, and Potter
m ade no com plaint about not hearing her. On another occasion, Potter told the trial court, “I can’t understand
the last few words she [K.H.] said.” The trial court repeated what K.H. had said and told K.H. to “[s]peak up,
20
witnesses’s responses, either the witnesses or the trial court repeated what Potter did not

hear. Moreover, assuming Potter was hearing impaired or had serious health problems,

appellant had the burden to show that counsel’s performance was adversely affected

because of these disabilities. See Dickerson v. State, 87 S.W.3d 632, 637 (Tex. App.–San

Antonio 2002, no pet.) (despite allegations defense counsel drank alcohol before and

during trial, defendants had burden to show counsel’s performance was adversely affected

because of the drinking). Thus, appellant still must carry his burden of proving he did not

receive effective assistance of counsel because counsel failed to object to leading

questions, hearsay, and bolstering. See Id.

please.” Potter cross-exam ined K.H. without indicating that he could not hear her answers to his questions.

Second, during direct-exam ination of R.H., the trial court sua sponte told her, “W ould you get a little
closer to the m ike, please, m a’am .” At this point, the prosecutor told her, “Both you and your daughter [K.H.]
are soft-spoken.” Later during R.H.’s direct-exam ination, Potter told the trial court that he did not hear her “last
response.” The trial court told R.H. to “[p]lease speak up, m a’am .” She repeated her answer, and Potter
m ade no com plaint about not hearing her. He cross-exam ined R.H., without indicating that he could not hear
her answers to his questions.

Third, while on direct-exam ination, Officer Hal W illiam s testified, in relevant part, that “I then called
the Y.S.U. investigator, Sargeant Davis.” At that point, Potter told the trial court, “I couldn’t hear what kind of
investigator he said, Your Honor?” The prosecutor asked Officer W illiam s, “W hat does ‘Y.S.U.’ stand for?”
Officer W illiam s replied, “Youth Services Investigator for the Killeen Police Departm ent.” Mr. Potter m ade no
com plaint about not hearing him . The defense did not cross-exam ine Officer W illiam s.

Fourth, during the direct-exam ination of Deborah Kleypas, the prosecutor asked her, “And was that,
based on your training and experience, consistent or inconsistent with a m ale inserting his fingers into her
[K.H.’s] vagina?” She replied, “Her redness could be consistent with her history about what happened.” At
this point, Potter told the trial court, “I couldn’t hear what she said, Your Honor.” The trial court replied, “If you
want to, Mr. Potter, you can scoot up here and sit right by the Kleenex box, right there, and that way you will
hear better.” After this, the prosecutor asked Ms. Kleypas, “So it was consistent with her story.” She replied,
“Yes, sir, it was.” Potter m ade no com plaint about not hearing her. He cross-exam ined her without indicating
that he could not hear her answers to his questions.

Fifth, with respect to the direct-exam ination of Officers April Johnson and Reese Davis, Potter did not
tell the trial court that he could not hear their testim ony. Officer Johnson was not cross-exam ined. Potter
cross-exam ined Officer Davis without telling the trial court he could not hear Officer Davis’s responses to his
questions.
21
 a. Failure To Object To Bolstering

Appellant complains counsel failed to object to the State bolstering its witnesses

during guilt-innocence closing argument13 and during the case-in-chief.14 Assuming the

prosecutor’s argument and the testimony of Officer Davis and R.H. constituted improper

bolstering, appellant has failed to show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

Ex parte Ellis, 233 S.W.3d at 330 (quoting Strickland, 466 U.S. at 694). Furthermore,

counsel’s failure to object on this basis may have constituted sound trial strategy. We have

no evidence bearing on counsel's decision not to object on the basis of bolstering. If

counsel's reasons for his conduct do not appear in the record and there is “at least the

possibility” that the conduct could have been grounded in legitimate trial strategy, we will

defer to counsel's decisions and deny relief on an ineffective-assistance claim on direct

appeal. Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).

b. Failure To Object To Leading Questions

Appellant directs our attention to portions of the record where defense counsel did

not object to leading questions.15 Assuming defense counsel erred in failing to object to

13
This com plaint concerns the prosecutor’s closing rem arks quoted in issue two.

14
This com plaint concerns the prosecutor’s direct-exam ination of Officer Davis and R.H.

15
In the first instance, the prosecutor was questioning K.H. about what she did after appellant had
sexually assaulted her: Prosecutor: “I guess your m ain thought was to get away from him .” She replied,
“Yes, ma’am .” Then, when the prosecutor asked her, “And that’s what you did?”, she replied, “Yes, m a’am .”

In the second instance, the prosecutor was questioning R.H. about the events leading up to the sexual
assault. Prosecutor: “After he [appellant] worked on the car, what else happened that day?” She replied that
appellant played ball with her son, helped her finish weed eating, and “then we hung out and talked.”
Afterwards, she invited him to stay for dinner.

In the third instance, the prosecutor offered into evidence the written report that Deborah Kleypas
prepared with respect to her exam ination of K.H. After the trial court adm itted the report into evidence, the
prosecutor asked Kleypas: “Now, if a child had like a m inor cut or som ething like that, you probably wouldn’t
even bother to put that down, would you?” She replied, “At tim es. It depends on if it is bruising and if we want
to educate and help them take care of it, their parents, then we will docum ent those type of findings.” The
22
these questions on the basis they were leading, appellant has failed to show there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Ex parte Ellis, 233 S.W.3d at 330 (quoting

Strickland, 466 U.S. at 694). Furthermore, because counsel's reasons for his conduct do

not appear in the record and there is “at least the possibility” that the conduct could have

been grounded in legitimate trial strategy, we defer to counsel's decisions and deny relief

on an ineffective-assistance claim on direct appeal. Garza, 213 S.W.3d at 348.

c. Failure To Object To Hearsay

Appellant argues that hearsay occurred “throughout the entire case” and that

counsel failed to object to Officer Davis’s hearsay testimony regarding the video-taped

interview of K.H.

i. Failure To Object To Hearsay Throughout The Entire Case

Appellant has failed to cite to pertinent portions of the record that support this

portion of his argument on appeal. Texas Rule of Appellate Procedure 38.1(i) provides

that the “brief must contain a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.” TEX . R. APP. P. 38.1(i). An appellant

must direct the court to the specific portion of the record supporting the alleged error.

Jensen v. State, 66 S.W.3d 528, 545 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d)

(citing Huerta v. State, 933 S.W.2d 648, 650 (Tex. App.–San Antonio 1996, no pet.)).

Because this portion of appellant’s argument contains no citations to the record, he has

waived appellate review of this complaint. See TEX . R. APP. P. 38.1(i); Jensen, 66 S.W.3d

at 545 (“Because appellant’s argument on this point of error contains no citations to the

prosecutor then asked her, “And just about every kid com es in with bum ps and bruises.” She replied, “Yes,
they do, especially in certain areas.”

23
record, he has waived appellate review of his complaint.”); Huerta, 933 S.W.2d at 650

(appellant must direct court to specific portion of record supporting complained—of error);

Lape v. State, 893 S.W.2d 949, 953-54 (Tex. App.–Houston [14th Dist] pet. ref’d) (holding

that nothing preserved for review because defendant’s brief did not direct appellate court

to proper place in record where alleged error was presented).

ii. Failure To Make Hearsay Objections To Officer Davis’s Testimony Regarding
K.H.’s Interview

Appellant argues that counsel was ineffective for failing to make hearsay objections

to Officer Davis’s testimony about K.H.’s video-taped interview. We have previously

quoted this testimony in issue two.

Hearsay is “a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX . R.

EVID . 801(d). Hearsay is inadmissible unless it falls within an exception created by statute

or rule. TEX . R. EVID . 802. The rules define “statement” as “(1) an oral or written verbal

expression or (2) nonverbal conduct of a person, if it is intended by the person as a

substitute for verbal expression.” TEX . R. EVID . 801(a).

With respect to Officer Davis’s testimony about the demeanor exhibited by K.H.

during her video-taped interview, K.H.’s demeanor would be hearsay only if it constituted

a statement. Nothing in this case shows K.H.’s demeanor during her interview was

“intended . . . as a substitute for verbal expression.” The rest of Officer Davis’s testimony

about what K.H. said during the interview is hearsay because it is based upon K.H.’s out-

of-court statements. See TEX . R. EVID . 801(d). However, appellant has failed to show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. Ex parte Ellis, 233 S.W.3d at 330 (quoting

24
Strickland, 466 U.S. at 694). Also, the record is silent concerning why defense counsel did

not lodge any hearsay objections to that testimony. Accordingly, the record before us is

insufficient to discern whether counsel’s conduct was a product of reasonable trial strategy.

3. Failing To Object To The Prosecutor’s Guilt-Innocence Closing Argument

During the final segment of the State’s guilt-innocence closing argument, the

prosecutor argued, in relevant part:

But we know that sex offenses happen. We know that they happen here in
Bell County. Deb Kleypas just herself has done 600 examinations. These
crimes happen, and we have to tell our children in Bell County that we are
going to believe them and we are going to support them and we are at least
going to give those scars a chance to heal. . . .

Appellant claims that counsel should have objected to the italicized portion of this

argument.

Because the evidence did not show that children are always truthful when accusing

someone of sexually abusing them, or that all children are scarred from sexual abuse, the

prosecutor’s remarks did not constitute either a summation of the evidence presented at

trial or a reasonable deduction drawn from that evidence. Furthermore, the argument was

not a proper plea for law enforcement nor was it in response to counsel’s argument.

Therefore, the remarks fell outside the permissible areas of proper jury argument. See

Jackson, 17 S.W.3d at 673. Nevertheless, even when the argument exceeds the

permissible bounds of approved jury argument, “such will not constitute reversible error

unless, in light of the record as a whole, the argument is extreme or manifestly improper,

violative of a mandatory statute, or injects new facts harmful to the accused into the trial

proceedings. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Phillips v.

State, 701 S.W.2d 875, 892 (Tex. Crim. App. 1985). Here, in light of the record as a

whole, the remarks were neither (1) extreme or manifestly improper, (2) violative of a

25
mandatory statute, nor (3) injected new facts, harmful to appellant. Thus, appellant has

failed to show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. Ex parte Ellis, 233 S.W.3d

at 330 (quoting Strickland, 466 U.S. at 694).

4. Failing To Object To The Prosecutor’s Punishment Phase Closing Argument

Appellant argues counsel was ineffective because he did not object to the

prosecutor’s closing argument with respect to the application of parole law. In accordance

with statute, the jury received the proper parole instructions16 in the punishment charge.

During closing argument, the prosecutor argued as follows:

Now, when we are talking about the Charge [sic], the most common
question we get is, “What is the difference between 99 and life?” Well, let
me put it this way. Here is 5 years, here is 60 years, and then between here
is 60 and 99. If you give anywhere from 5 to 99 years, the maximum
sentence he will serve before being eligible for parole, eligible, is 30 years.
In other words, if you give him 75, he’s not going to do 37-1/2. If you give
him 99, he’s not going to do 45 because, first, eligibility for parole is basically
cut off at 60. Okay? If you give him a life sentence, he’s eligible for parole
after 30 years. He would be 57 years old if he made it, quite able to carry out
what he wasn’t able to do past 30 years.

16
Article 37.07, section 4(a) provides, in relevant part:

It is also possible that the length of tim e for which the defendant will be im prisoned
m ight be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term of
im prisonm ent, he will not becom e eligible for parole until the actual tim e served equals one-
half of the sentence im posed or thirty (30) years, whichever is less, without consideration of
any good conduct tim e he m ay earn. Eligibility for parole does not guarantee that parole will
be granted.

It cannot accurately be predicted how the parole law and good conduct tim e m ight
be applied to this defendant if he is sentenced to a term of im prisonm ent, because the
application of these laws will depend on decisions m ade by prison and parole authorities.

You m ay consider the existence of the parole law and good conduct tim e. However,
you are not to consider the extent to which good conduct tim e m ay be awarded to or forfeited
by this particular defendant. You are not to consider the m anner in which the parole law m ay
be applied to this particular defendant.

See T EX . C OD E C R IM . P R O C . A N N . art. 37.07, § 4(a) (Vernon Supp. 2008).
26
Counsel did not object to this argument.

Even if counsel had preserved this complaint, we do not believe the argument is

improper. See Taylor v. State, 233 S.W.3d 356 (Tex. Crim. App. 2007). In Taylor, the

punishment charge gave the jury the parole instructions that the jury received in the case

before us. See id. at 358. After the trial court charged the jury, the prosecutor argued, in

relevant part:

Now, let me stop and talk to you about the charge for just a moment so that
you can-you probably do understand already but the Judge mentioned to you
that as far as parole eligibility that the defendant becomes eligible for parole
after he serves one-half of the sentence imposed or thirty years. Let me
explain that to you for just a moment. Let’s say a sentence of 40 years-

***

A 40-year sentence means the defendant becomes eligible for parole after
serving 20 years.

***

A 60-year sentence means he becomes eligible after serving 30 years. A
sentence of life or 75 still means he becomes eligible after 30 years. So,
why would I ask you for life and a $10,000 fine if he becomes eligible at the
same point?

Id. The jury sentenced the defendant to fifty years in prison and a $10,000 fine. Id. at 359.

On appeal, the defendant asserted the argument was improper, but the court of criminal

appeals disagreed, stating that the prosecutor “did not convey any information beyond

what was properly contained in the charge when he explained how the parole eligibility

rules set out in the charge worked with forty, sixty and seventy-five year sentences. The

explanation simply ensured that the jury understood the language set out in the

instructions.” Id. at 359.

Likewise, in this case, the prosecutor did not convey any information beyond what

was properly contained in the charge when he explained how the parole eligibility rules set

27
out in the charge worked with respect to seventy-five, ninety-nine and life imprisonment.

The only remaining part of the prosecutor’s argument that might have been objectionable

was the statement at the end of the colloquy: “He would be 57 years old if he made it,

quite able to carry out what he wasn’t able to do past 30 years.” Assuming that this part

of the argument was improper, it was harmless because appellant was sentenced to only

fifty years. See id. (prosecutor’s argument at end of colloquy: “So, why would I ask you

for life and a $10,000 fine if he becomes eligible at the same point?” held harmless

because defendant was sentenced to only fifty years).

Moreover, appellant’s argument that the claimed deficiency resulted in a higher

sentence is speculation. The punishment range for aggravated sexual assault of a child

is five to ninety-nine years or life in prison and a fine of up to $10,000. TEX . PENAL CODE

ANN . §§ 22.021(e), 12.32(a), (b) (Vernon 2003 & Supp. 2008). After hearing the

punishment evidence that appellant had sexually assaulted another person prior to

sexually assaulting K.H., the jury assessed a fifty-year sentence and no fine, which is in

the middle of the punishment range. Based on the record before us, we conclude

appellant has not met his burden to show either deficient performance or that the result

would have been different had counsel objected, asked the trial court to instruct the jury

to disregard the prosecutor’s statements and to have moved for a mistrial. Issues three

and five are overruled.

D. Denial Of Mistrial

In issue four, appellant argues the trial court erred in denying his motion for a

mistrial after sustaining his objection to statements the prosecutor made during guilt-

innocence closing argument. During voir dire examination, the trial court excused the

venire members from the courtroom so that six prospective jurors could speak to the court

28
and to the attorneys for both sides in private. Five of these prospective jurors stated that

they were either sexually abused, had a family member who was sexually abused, or had

lived with a sex offender. None of the six prospective jurors were seated on the jury.

During guilt-innocence closing argument, the prosecutor made the following comment17 to

the jury:

So the question is, the 12 of you all, she’s placed her trust in you.
Now her trust has been broken by that man, and she is going to carry that
scar permanently with her for the rest of her life. You heard how hard it was
for six [sic] of your own jury panel to talk about sex. They had to approach
the bench and talk to the lawyers in private. Those are adults that are
permanently scarred by things that happened in their past.

At this point, defense counsel objected that the argument was “outside the record.” The

trial court sustained the objection. When counsel asked the trial court “to instruct the jury

to disregard,” the trial court replied, “The jury will disregard.” The trial court denied

counsel’s request for a mistrial.

“A mistrial is the trial court’s remedy for improper conduct that is ‘so prejudicial that

expenditure of further time and expense would be wasteful and futile.’” Hawkins v. State,

135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex.

Crim. App. 1999)). Only extreme circumstances, when the prejudice is incurable, require

a mistrial. Id. In cases when the trial court sustains an objection and instructs the jury to

disregard, but denies a motion for mistrial, the proper issue is whether the trial court

abused its discretion by denying the mistrial. Id. at 76-77. A trial court abuses its

discretion when its decision falls outside the zone of reasonable disagreement. Casey v.

State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). With respect to jury argument that

17
Appellant com plains about the italicized com m ents.
29
falls outside the four permissible areas,18 the factors we consider in determining whether

the trial court abused its discretion in denying a mistrial include: (1) severity of the

misconduct (magnitude of the prejudicial effect of the prosecutor’s remarks); (2) measures

adopted to cure the misconduct (efficacy of the trial court’s cautionary instruction); and (3)

the certainty of conviction absent the misconduct (the strength of the evidence supporting

conviction). Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); Tucker v.

State, 15 S.W.3d 229, 237-38 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d) (applying

Mosley factors to determine if improper guilt-innocence final argument constituted

reversal).19 We consider the argument in the context in which it appeared. Denison v.

State, 651 S.W.2d 754, 761 (Tex. Crim. App. 1983); Ayala v. State, 267 S.W.3d 428, 436

(Tex. App.–Houston [14th Dist.] 2008, no pet.).

1. First Mosley Factor–Severity Of The Misconduct

The prosecutor was apparently trying to make a plea for law enforcement by

explaining to the jury how sexual abuse affected the victim. The prosecutor stated that

K.H. “is going to carry that scar[20] permanently with her for the rest of her life.” Then, she

reminded the jury about what happened at voir dire, stating: “They had to approach the

18
See Jackson v. State, 17 S.W .3d 664, 673 (Tex. Crim . App. 2000).

19
W e do not find that the prosecutor’s rem arks im pinged upon appellant’s constitutional rights. See
Tucker v. State, 15 S.W .3d 229, 237 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d) (finding the trial court’s
erroneous ruling regarding im proper com m ents m ade during jury argum ent involved nonconstituional error);
Ortiz v. State, 999 S.W .2d 600, 605-06 (Tex. App.–Houston [14th Dist.] 1999, no pet.) (finding the trial court’s
error in overruling defendant’s repeated objections to argum ents outside the record am ounted to
nonconstituional error). W e therefore use the Mosley factors to determ ine if the trial court in this case should
have granted a m istrial.

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That K.H. would be em otionally scarred from an aggravated sexual assault is a reasonable
deduction from the evidence in light of R.H.’s testim ony that because of the experience: (1) K.H. required
counseling; (2) K.H. “was em otional all the tim e;” and (3) the assault affected K.H.’s relationships with adult
m ales. See W illiams v. State, 732 S.W .2d 762, 765 (Tex. App.–Beaum ont 1987, no pet.) (noting that victim
would be em otionally scarred from aggravated sexual assault was reasonable deduction from evidence that
victim required counseling). O ne m ay argue reasonable deductions from the evidence. See Cannady v.
State, 11 S.W .3d 205, 213 (Tex. Crim . App. 2000).
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bench and talk to the lawyers in private. Those are adults that are permanently scarred

by things that happened in their past.” However, because the five prospective jurors spoke

to the trial court and the attorneys outside the presence of the other venire members, and

because the record does not show that the five prospective jurors were “permanently

scarred,” the prosecutor exceeded the bounds of permissible jury argument. See Jackson,

17 S.W.3d at 673. Nevertheless, the prosecutor did not repeat this argument, and we do

not find the improper argument to be severe. See Geuder v. State, 76 S.W.3d 133, 138

(Tex. App.–Houston [14th Dist.] 2002), overruled on other grounds, 115 S.W.3d 11 (Tex.

Crim. App. 2003) (finding mistrial not necessary despite the statement “[w]ho knows how

many other people . . . [defendant] has stolen from in other counties” by prosecutor in guilt-

innocence phase).

2. Second Mosley Factor–Measures Adopted To Cure The Misconduct

“In the vast majority of cases in which argument is made . . . which has no relevance

to any material issue in the case and carries with it some definite potential for prejudice to

the accused,” the court of criminal appeals has relied upon “an appellate presumption that

an instruction to disregard . . . will be obeyed by the jury.” Gardner v. State, 730 S.W.2d

675, 696 (Tex. Crim. App. 1987). Furthermore, “[w]hen counsel asks for a particular

instruction and the trial court accedes to the request by saying ‘the jury is so instructed,’

that instruction will in most cases be considered effective to cure the harm from an

improper argument.” Hawkins, 135 S.W.3d at 84. Here, the trial court immediately

sustained the objection and instructed the jury to disregard. We find this curative measure

sufficient. See Hawkins, 135 S.W.3d at 84.

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 3. Third Mosley factor–Certainty Of Conviction Absent The Misconduct

K.H. testified that appellant touched her, “In my vagina” and that appellant “moved

it [his finger] around in there.” When the prosecutor asked her, “And are you talking about

your vagina?”, she said, “Yes, ma’am.” R.H. testified that K.H. said that appellant touched

her “In my private” and that K.H. “told me that he [appellant] had put his finger in her

vagina.” Deborah Kleypas testified that she found “redness” inside K.H.’s labia majora.

When the prosecutor asked Kleypas, “And was that [redness], based on your training and

experience, consistent or inconsistent with a male inserting his fingers into her [K.H.’s]

vagina?”, she replied, “Her redness could be consistent with her history about what

happened.” Thus, absent the improper comments, the certainty of conviction is strong.

After balancing the three factors, we hold that any possible harm caused by the

argument was cured by the trial court’s instruction. Because that instruction is presumed

effective, the trial court did not abuse its discretion by denying the motion for mistrial. See

Ladd, 3 S.W.3d at 567 (grant of a mistrial is required only “when error is so prejudicial that

expenditure of further time and expense would be wasteful and futile”). Issue four is

overruled.

III. CONCLUSION

We affirm the trial court’s judgment.

ROSE VELA
Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 12th day of February, 2009.

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