IN THE
TENTH COURT OF APPEALS
No. 10-12-00167-CR
ARANDAL CARY HIGHTOWER
AKA ARENDALL CARY HIGHTOWER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2011-736-C2
MEMORANDUM OPINION
In this appeal, appellant, Arandal Cary Hightower a/k/a Arendall Cary
Hightower, challenges his convictions for: (1) aggravated sexual assault of a child, a
first-degree felony, see TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (e) (West Supp. 2012);
and (2) indecency with a child by contact, a second-degree felony. See id. § 21.11(a)(1),
d) (West 2011). In one issue, appellant complains that the trial court erred in overruling
his objection to the State’s closing argument. We affirm.
I. BACKGROUND
Here, appellant was charged by indictment with one count of aggravated sexual
assault of a child, T.D., and two counts of indecency with a child by contact.1 The
indictment also contained: (1) an enhancement paragraph referencing appellant’s
September 29, 2005 felony conviction for unlawful possession of a controlled substance;
and (2) a habitual allegation pertaining to appellant’s August 24, 1989 felony conviction
for injury to a child. In any event, during trial, the State abandoned one of the counts of
indecency with a child by contact and proceeded against appellant on the remaining
charged counts.
The evidence at trial showed that appellant knew T.D. through T.D.’s
grandmother, who was caring for T.D. at the time. Apparently, appellant and T.D.’s
grandmother were “going together,” and on the day in question, T.D. was at the
grandmother’s apartment with T.D.’s stepbrother and appellant.
T.D. testified that she was lying on a bed with her stepbrother and appellant
while her grandmother was away. At some point, appellant “got under the cover[s]
when I got under the cover[s] and he told me to unbutton my pants.” T.D. refused to
do so, but appellant began “feeling on [her].” T.D. recalled that appellant touched her
breasts under her shirt and that he “put his hand inside [her] pants and then he was
rubbing on it.” Later testimony revealed that T.D. accused appellant of also penetrating
her vagina with his finger.
1 The record reflects that T.D. was nine years old at the time of the incident. To protect her
identity, we will use initials to refer to T.D. and her family members.
Hightower v. State Page 2
T.D. made outcry statements to several family members, including her
grandmother, who did not believe her. After hearing T.D.’s outcry, T.D.’s grandmother
forced her to speak to appellant on the telephone about the incident. In this
conversation, appellant denied any involvement. Instead, he asserted that he was
merely tickling or wrestling with T.D. Eventually, another family member called the
police to report the incident. T.D. was interviewed, and a sexual-abuse exam was
administered. Several of T.D.’s family members were interviewed. T.D.’s stepbrother,
who was present at the time of the incident, stated that appellant tried to “rape” T.D.
and that he got on top of her and tried to “take off her pants.” Appellant was also
interviewed about the incident. A videotape of appellant’s interview was admitted into
evidence.
At the conclusion of the evidence, the jury found appellant guilty of one count of
aggravated sexual assault of a child and one count of indecency with a child by contact.
Appellant pleaded “true” to the enhancement and habitual allegations contained in the
indictment. The jury assessed punishment at life incarceration in the Institutional
Division of the Texas Department of Criminal Justice for the aggravated-sexual-assault-
of-a-child count and sixty years’ confinement for the indecency-with-a-child-by-contact
count. The trial court ordered that the imposed sentences run consecutively. This
appeal followed.
II. ANALYSIS
In his sole issue, appellant contends that the trial court erred in overruling his
objection to comments made by the State in closing argument that he was yawning,
Hightower v. State Page 3
bored, and considered this case to be “no big deal.” Specifically, appellant argues that
these statements improperly commented on his failure to testify at trial.
A. The State’s Closing Argument
The portion of the State’s closing argument about which appellant complains is
as follows:
[The State]: And—and talking about liberty interest at stake and
how important it is when you find beyond a
reasonable doubt. This man can’t stop yawning at his
own trial. He is bored to tears hearing the arguments
made at his trial to determine the outcome of his
liberty—
[Defense counsel]: Your Honor, I’m going to object. That’s a comment
on his right to testify at this point[,] and I think it’s
highly inappropriate[,] and I’d ask that the jury
disregard her last argument.
THE COURT: The objection is overruled.
[The State]: This man is yawning because he’s bored. He’s bored
with his trial. That’s what this means to him. No big
deal—
[Defense counsel]: Your Honor, I object. That is a comment on his right
not to testify.
THE COURT: Your objection is overruled.
B. Applicable Law
We review a trial court’s rulings on objections to argument for abuse of
discretion. York v. State, 258 S.W.3d 712, 717 (Tex. App.—Waco 2008, pet. ref’d). Proper
jury argument falls within one of four general areas: (1) summation of evidence; (2)
reasonable deductions from the evidence; (3) answers to arguments of opposing
Hightower v. State Page 4
counsel; and (4) pleas for law enforcement. Lagrone v. State, 942 S.W.2d 602, 619 (Tex.
Crim. App. 1997). To determine whether the argument properly falls within one of
these categories, we consider the argument in light of the record as a whole. Sandoval v.
State, 52 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). Jury
argument must be extreme or manifestly improper or inject new and harmful facts into
evidence to constitute reversible error. Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim.
App. 1996). Furthermore, in most cases, if error occurs, an instruction to disregard will
cure any error committed. Id.
A prosecutor is permitted, during argument, to “draw from the facts in evidence
all inferences which are reasonable, fair and legitimate, but he may not use jury
argument to get before the jury, either directly or indirectly, evidence which is outside
the record.” Jordan v. State, 646 S.W.2d 946, 948 (Tex. Crim. App. 1983); see Cantu v.
State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997) (holding that the State has “wide
latitude” in drawing inferences from evidence, as long as the inferences are reasonable
and offered in good faith). The State may call the jurors’ attention to that which they
had an equal opportunity to observe, provided that such information is reflected in the
record or is of such common occurrence “that its recognition requires no expertise
before proper comment thereon may occur.” Jordan, 646 S.W.2d at 948.
In Good v. State, the Texas Court of Criminal Appeals held that, although the
State may allude during argument to a testifying defendant’s demeanor while he
testified, the State may not reference the defendant’s non-testimonial courtroom
demeanor as evidence of guilt. 723 S.W.2d 734, 736 (Tex. Crim. App. 1968); see Wead v.
Hightower v. State Page 5
State, 129 S.W.3d 126, 130 n.8 (Tex. Crim. App. 2004) (“We have recognized that, during
closing argument at the guilt/innocence phase, a prosecutor may not properly
comment upon the defendant’s demeanor in the courtroom, since the defendant’s
demeanor in the courtroom is not evidence of guilt.”). The Good court noted that a
defendant’s demeanor during a witness’s testimony was not a proper subject for
argument because “[i]t was not offered into evidence through any legally recognizable
method of proof.” Good, 723 S.W.2d at 736. “Allowing the State to summarize
appellant’s non[-]testimonial demeanor impermissibly placed appellant’s demeanor
before the jury through the prosecutor’s unsworn jury argument.” Id. Nevertheless, the
Texas Court of Criminal Appeals has also noted that, if the record reflects that the
defendant “misbehaved or conducted himself in the jury’s presence in an unacceptable
manner,” this conduct is proper subject for discussion during argument. Dickinson v.
State, 685 S.W.2d 320, 323 (Tex. Crim. App. 1984).
In both Good and Dickinson, the prosecutor referred to the defendant’s orderly
non-testimonial behavior as evidence of the defendant’s lack of remorse and contrition.
See Good, 723 S.W.2d at 735; see also Dickinson, 685 S.W.2d at 322. In both of these cases,
the record did not include admitted evidence pertaining to the defendant’s actual
courtroom behavior and demeanor. See Good, 723 S.W.2d at 736 (“Appellant’s
demeanor during the complainant’s testimony was not evidence subject to reference by
the prosecutor.”); Dickinson, 685 S.W.2d at 323 (“[W]e have yet to find, and the State
does not refer us to any place in the record, any act on the part of the appellant that
might enable us to conclude that he misbehaved or conducted himself in an improper
Hightower v. State Page 6
manner during the course of his trial.”); see also Jordan, 646 S.W.2d at 947 (stating that
the record did not contain evidence to support the prosecutor’s argument imploring
jurors to “look at the needle tracks on [appellant’s arms]”).
C. Discussion
In his closing argument, appellant emphasized the reasonable-doubt standard
and the importance of his liberty interest that was at stake in this case. The State argues
that its comments about appellant’s indifferent demeanor could be construed as a
response to defense counsel’s closing argument or as a reasonable deduction from the
evidence. See Lagrone, 942 S.W.2d at 619. However, appellant did not testify in this
case. As stated above, “[a] defendant’s non[-]testimonial demeanor does not constitute
evidence that may be referenced by the prosecutor. Allowing the prosecutor to
comment on non[-]testimonial courtroom demeanor improperly places a defendant’s
demeanor before the jury through unsworn argument.” Mayberry v. State, 830 S.W.2d
176, 178 (Tex. App.—Dallas 1992, pet. ref’d) (citing Good, 723 S.W.2d at 736). And
“[b]ecause a defendant’s non[-]testimonial demeanor is not evidence, it provides no
basis for reasonable deductions from the evidence. Courtroom demeanor is simply
irrelevant to the issue of guilt.” Id. (citing Good, 723 S.W.2d at 737). Therefore, based on
the foregoing, we cannot say that the State’s comments during closing argument
amounted to a reasonable deduction from the evidence.
The State also argues that its comments during closing argument were a
response to appellant’s emphasis during closing argument on his liberty interest. The
Mayberry court noted that: “The invited argument rule allows the prosecution to go
Hightower v. State Page 7
outside the record to respond to unsubstantiated arguments made by defense counsel.”
Id. (citing Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. [Panel Op.] 1981)).
Here, appellant did not argue in his closing argument that his non-testimonial
demeanor supported a judgment of acquittal; instead, he merely emphasized how
important the jury’s decision was to his liberty interest. We are not persuaded that the
State’s comments during closing argument were an appropriate response to appellant’s
emphasis on his liberty interest. Accordingly, the State’s comments cannot be justified
as invited argument.
Because the State does not contend that its comments during closing argument
constituted a summation of the evidence or a plea for law enforcement, we cannot say
that the comments fell within the four areas of acceptable jury argument; as such, we
conclude that the State’s comments about appellant’s non-testimonial demeanor were
improper. We must now conduct a harm analysis to determine the impact of this error.
D. Harm Analysis
An erroneous ruling regarding comments made during argument is non-
constitutional error subject to a harm analysis under Texas Rule of Appellate Procedure
44.2(b).2 See TEX. R. APP. P. 44.2(b); see also Mosley v. State, 983 S.W.2d 249, 259 (Tex.
2 In his brief, appellant generally cites law that commenting on a defendant’s failure to testify is
constitutional error subject to analysis under Texas Rule of Appellate Procedure 44.2(a). See TEX. R. APP.
P. 44.2(a). However, in reviewing his brief, we are not persuaded that Rule 44.2(a)-error analysis applies
here, especially considering that most other cases involving similar error employ a Rule 44.2(b)-error
analysis. See Mayberry v. State, 830 S.W.2d 176, 178-79 (Tex. App.—Dallas 1992, pet. ref’d); see also Miles v.
State, Nos. 01-10-00784-CR & 01-10-00785-CR, 2011 Tex. App. LEXIS 8514, at **13-14 (Tex. App.—Houston
[1st Dist.] Oct. 27, 2011, pet. ref’d) (mem. op., not designated for publication); Smith v. State, No. 14-03-
01174-CR, 2005 Tex. App. LEXIS 2133, at **7-8 (Tex. App.—Houston [14th Dist.] Mar. 22, 2005, pet. ref’d)
(mem. op., not designated for publication); Cherry v. State, No. 04-01-00046-CR, 2002 Tex. App. LEXIS
7310, at **3-7 (Tex. App.—San Antonio Sept. 30, 2002, no pet.) (not designated for publication); but see
Hightower v. State Page 8
Crim. App. 1998). We disregard any non-constitutional error that does not affect a
defendant’s substantial rights by having a “substantial and injurious effect or influence
in determining the jury’s verdict.” Jabari v. State, 273 S.W.3d 745, 754 (Tex. App.—
Houston [1st Dist.] 2008, no pet.) (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim.
App. 2000); see TEX. R. APP. P. 44.2(b). We should not reverse a conviction for non-
constitutional error if, after examining the record as a whole, we have “fair assurance
that the error did not influence the jury, or had but a slight effect.” Jabari, 273 S.W.3d at
754 (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).
Here, the focus of the closing arguments for both sides was on the credibility of
T.D. The complained-of exchange was but a small portion of the State’s closing
argument. Most of the State’s closing argument focused on the credibility of T.D.’s
outcry and testimony. Moreover, the record contains ample evidence regarding the
incident, including testimony from several witnesses recounting T.D.’s outcry and from
T.D.’s stepbrother, who noted that he was present at the time of the incident and that
appellant tried to take off T.D.’s pants and appeared to “rape” her.
After examining this record as a whole, we have fair assurance that the
complained-of error did not influence the jury, or had but a slight effect. See Johnson,
Dickinson v. State, 685 S.W.2d 320, 323 (Tex. Crim. App. 1984) (holding that prosecutorial argument that
points to a defendant’s lack of remorse or contrition is an impermissible comment on a defendant’s
failure to testify). Furthermore, while the State’s statements during closing argument were improper, we
do not believe that they amount to a comment on appellant’s failure to testify. See Wead v. State, 129
S.W.3d 126, 130 (Tex. Crim. App. 2004) (citing United States v. Jefferson, 258 F.3d 405, 414 (5th Cir. 2001);
Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001)). The record does not reflect that the State’s
statements were manifestly intended to be a comment on appellant’s failure to testify, nor were the
statements of such a character that a typical jury would naturally and necessarily take the statements to
be a commentary on appellant’s failure to testify. See Wead, 129 S.W.3d at 130; see also Bustamante, 48
S.W.3d at 765.
Hightower v. State Page 9
967 S.W.2d at 417; see also Jabari, 273 S.W.3d at 754. As such, we conclude that the
complained-of error was harmless beyond a reasonable doubt. See Snowden v. State, 353
S.W.3d 815, 824-25 (Tex. Crim. App. 2011) (concluding that a prosecutor’s summation
directing the jury to consider appellant’s lack of present, in-court remorse was harmless
beyond a reasonable doubt because it was isolated and imbedded within a legitimate
argument and because “[t]he evidence against the appellant was substantial, if not
overwhelming”).3 We therefore overrule appellant’s sole issue on appeal.
III. CONCLUSION
Having overruled appellant’s sole issue on appeal, we affirm the judgments of
the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed October 3, 2013
Do not publish
[CRPM]
3 We note that the Snowden court applied a Rule 44.2(a)-error analysis in arriving at is conclusion
that the State’s comments during closing argument were harmless beyond a reasonable doubt. See
generally Snowden, 353 S.W.3d 815 (Tex. Crim. App. 2011).
Hightower v. State Page 10
Arandal Cary Hightower AKA Arendall Cary Hightower v. State
Combined Opinion