AFFIRM; and Opinion Filed February 17, 2017.
S
Court of Appeals
In The
Fifth District of Texas at Dallas
No. 05-15-01213-CR
AARON BERNARD CARTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1356070-T
MEMORANDUM OPINION
Before Justices Fillmore, Brown, and Richter 1
Opinion by Justice Brown
Following a jury trial, appellant Aaron Bernard Carter appeals his conviction for sexual
assault of a child. In two issues, appellant contends the evidence is legally insufficient to support
his conviction and contends the trial court erred in overruling an objection to impermissible jury
argument. We affirm the trial court’s judgment.
BACKGROUND
Appellant was indicted for the sexual assault of T.B., a child younger than seventeen
years of age. Appellant pleaded not guilty, and the case proceeded to a jury trial.
At the time of trial, T.B. was seventeen years old. She testified that her parents were
deceased and that she was raised by her grandmother. Appellant was related to the father of one
1
The Hon. Martin Richter, Justice, Assigned.
of T.B.’s cousins; T.B. and appellant were not blood relatives. T.B. testified that the offense
occurred in 2012 when she was fourteen. T.B.’s aunt Nina had taken her to the apartment of
appellant’s mother to play with other children while Nina took care of some business. T.B. had
been there a few times before. She went to sleep on a couch in the living room while the other
kids went outside to play with appellant’s mother. Appellant woke T.B. up by tapping her on the
shoulder, and he pulled her by her arm to the restroom. Appellant then grabbed T.B.’s hand and
laid her on her back on the floor. Appellant pulled down T.B.’s pants and pulled down his pants.
He stuck his penis inside T.B.’s vagina and “[k]ept going in and out.” Appellant stopped when
other people entered the apartment. He told T.B. not to tell anybody.
T.B. could not remember the exact date of the incident. She testified it occurred
sometime between March and May of 2012. Almost a year later, T.B. went to a clinic because
her private part was itching. The doctor told her she had chlamydia. T.B. then told her aunt
Patricia what had happened to her.
T.B.’s grandmother, Deloris Wright, testified T.B. had a learning disability and took
special education classes. Wright was surprised when she learned T.B. had contracted a sexually
transmitted disease because Wright knew T.B. was not sexually active.
Nakisha Biglow conducted a forensic interview with T.B. at the Dallas Children’s
Advocacy Center. Biglow testified that initially T.B. was very talkative, but her demeanor
changed when they began talking about the details of the sexual assault. T.B. lowered her voice
and started to cry. Biglow testified it was pretty common for children to have a delayed outcry.
Biglow also testified that she did not have any concerns about T.B. being untruthful.
After appellant was arrested, Breanna Valentine, a detective in the child abuse unit of the
Dallas Police Department, obtained a search warrant to have appellant testified for chlamydia.
The test was performed about a year after the alleged sexual assault, and Valentine testified that
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appellant tested negative. Valentine was unable to check appellant’s medical history to
determine if he had been treated for chlamydia. Appellant was not able to give Valentine
information about his doctors.
Pediatrician Matthew Cox testified that part of his job was examining children who have
been sexually abused. Cox examined T.B. on May 24, 2013. In talking to her about her medical
history, Cox learned T.B. had contracted chlamydia. T.B. tested negative for chlamydia at the
time Cox examined her; the infection had been cured. Cox explained that chlamydia is a
bacterial infection and that a single dose of antibiotics cures the infection the vast majority of the
time.
Defense counsel reserved cross-examination of T.B. and her grandmother and later called
them during appellant’s case-in-chief. T.B. testified that she took special education classes
because she needed help “in certain places some of the time,” like geometry, English, and
reading. She testified there was not anything wrong with her mentally.
The defense called several other witnesses, including T.B.’s older sister, Tamara Wright.
When asked if T.B. had a boyfriend in 2012, Tamara said, “Probably one that I know of.”
Tamara did not think T.B. was sexually active because their grandmother was very strict.
Tamara remembered that T.B. “just kept crying” on the day of the incident, but T.B. would not
tell Tamara what was wrong. Appellant’s adult daughter testified her father had some mental
and physical disabilities. He cannot read or write. He also has seizures and was diagnosed with
Parkinson’s disease two to three years earlier. Velma Green, who had been dating appellant for
about four years, testified she never got an STD from appellant.
The jury found appellant guilty of sexual assault of a child. At punishment, appellant
pleaded not true to the enhancement allegation that he had a 1995 drug conviction. The jury
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found the enhancement allegation true and assessed appellant’s punishment at thirty years’
confinement. This appeal followed.
SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant contends the evidence is legally insufficient to support his
conviction. A person commits sexual assault if he intentionally or knowingly causes the
penetration of the sexual organ of a child younger than seventeen years of age by any means.
TEX. PENAL CODE ANN. §§ 22.011(a)(2)(A), (c)(1) (West 2011). When reviewing the sufficiency
of the evidence, we consider all of the evidence in the light most favorable to the verdict to
determine whether, based on that evidence and the reasonable inferences therefrom, a factfinder
was rationally justified in finding guilt beyond a reasonable doubt. Temple v. State, 390 S.W.3d
341, 360 (Tex. Crim. App. 2013); see Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). The
factfinder is the sole judge of the credibility of the witnesses and the weight to be given their
testimony. Temple, 390 S.W.3d at 360. The testimony of a child victim alone is sufficient to
support a conviction for sexual assault of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07
(West Supp. 2016); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—Dallas 2006, pet. ref’d).
T.B. testified regarding the elements of sexual assault of a child. She stated that while
she was asleep at the home of appellant’s mother, appellant woke her up and pulled her into the
bathroom. He then pulled down her pants and his pants and stuck his penis inside her. T.B. was
fourteen years old at that time.
Appellant maintains that the evidence is insufficient for various reasons. First, he argues
that “T.B. was a very sheltered young lady who did not tell her grandmother she had a
boyfriend.” Appellant seems to suggest that T.B. accused him of sexual assault after she
contracted chlamydia to cover up for the fact that she had a boyfriend she did not want her
grandmother to know about. In addition, he questions why T.B. waited many months to seek
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medical treatment for the chlamydia and points out that he was never shown to have had the
condition or to have been treated for it. Also, appellant questions whether the sexual assault
occurred because, according to him, it was unreasonable to believe that T.B. would not have told
someone about it immediately after it happened. Appellant further contends that his disabilities
make it unlikely he committed the offense. But all of these arguments raise issues that were for
the jury to reconcile. It was the jury’s role as factfinder to judge the witnesses’ credibility and
resolve any conflicts in the evidence. We defer to its resolution of these matters. After
reviewing all the evidence under the proper standard, we conclude the evidence is sufficient to
support the conviction. We overrule appellant’s first issue.
JURY ARGUMENT
In his second issue, appellant contends the trial court erred in overruling his objection to
allegedly impermissible jury argument. Appellant complains of the following statement by the
prosecutor during the State’s closing argument: “[T.B.] has nothing against this defendant. She
didn’t even know him. There’s no reason why she would come in here and lie.” Defense
counsel objected on grounds the prosecutor was “bolstering the testimony of her witness.” The
trial court overruled the objection.
A defendant must object each time an allegedly improper jury argument is made or he
waives his complaint. Temple v. State, 342 S.W.3d 572, 603 (Tex. App.—Houston [14th Dist.]
2010), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013); Wilson v. State, 179 S.W.3d 240, 249
(Tex. App.—Texarkana 2005, no pet.). Here, right after the trial court overruled appellant’s
objection, the prosecutor continued to argue that there was no reason for T.B. to come into court
to accuse appellant and talk about being raped at age fourteen. Then the prosecutor added that
T.B. had nothing to gain. Appellant made no objection to these remarks. By failing to object to
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this argument, in which the prosecutor was still arguing T.B. had no reason to lie, appellant has
failed to preserve this issue for our review.
Even if appellant had preserved error, his complaint lacks merit. Generally, proper jury
argument is limited to the following subjects: (1) a summation of the evidence presented at trial;
(2) reasonable deductions and inferences drawn from that evidence; (3) responses to opposing
counsel’s argument; and (4) appropriate pleas for law enforcement. Wesbrook v. State, 29
S.W.3d 103, 115 (Tex. Crim. App. 2000). To determine whether jury argument is improper, we
look to the entire record and assess the argument in context. Gaddis v. State, 753 S.W.2d 396,
398 (Tex. Crim. App. 1988). We review the trial court’s ruling on an objection to a jury
argument for an abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App.
2004). A trial court does not abuse its discretion when its decision is within the zone of
reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
Appellant contends the argument that T.B. had no reason to lie was improper because it
was intended to bolster the credibility of T.B., whose credibility was a key issue for the jury.
Appellant asserts the prosecutor usurped the role of the factfinder when making this argument.
But the trial court could have determined that the argument was proper as a reasonable deduction
from the evidence. Just prior to making the complained-of argument, the prosecutor twice told
the jurors that it was their job to judge T.B.’s credibility. The prosecutor asked the jury to
consider T.B.’s demeanor in judging her credibility, arguing that she obviously did not want to
talk about the sexual assault. The prosecutor also referred to evidence from T.B.’s sister about
T.B.’s demeanor on the day of the alleged assault and from the forensic interviewer about T.B.’s
demeanor during their interview. The State noted the evidence was consistent; T.B. had not
provided different versions of the incident. It was in this context that the State argued T.B. had
no reason to come into court and lie about being raped. The prosecutor did not improperly state
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her personal belief as to T.B.’s credibility or go outside the record to vouch for her credibility.
Instead, she asked the jury to make inferences about T.B.’s credibility based on her demeanor
and the evidence. Compare Stout v. State, 426 S.W.3d 214, 222 (Tex. App.—Houston [1st Dist.]
2012, no pet.) (argument about whether arresting officer had motive to lie did not constitute
improper bolstering of officer’s credibility), with Menefee v. State, 614 S.W.2d 167, 168 (Tex.
Crim. App. 1981) (prosecutor’s argument “I don’t believe I have ever seen anybody that I
thought was any more honest than [eyewitness] is” improperly injected prosecutor’s opinion of
witness’s credibility). The trial court did not abuse its discretion in overruling the defense’s
objection to the argument in question. We overrule appellant’s second issue.
We affirm the trial court’s judgment.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b).
151213F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AARON BERNARD CARTER, Appellant On Appeal from the 283rd Judicial District
Court, Dallas County, Texas
No. 05-15-01213-CR V. Trial Court Cause No. F-1356070-T.
Opinion delivered by Justice Brown, Justices
THE STATE OF TEXAS, Appellee Fillmore and Richter participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 17th day of February, 2017.
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Aaron Bernard Carter v. State
Combined Opinion