Thornburgh, Robert Jr.

PD-0230-15
PD-0230-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/2/2015 12:00:00 AM
PD No. Accepted 3/2/2015 2:14:02 PM
ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS AT
AUSTIN, TEXAS

ROBERT THORNBURG, JR. §
Appellant §
§ CAUSE NO. 11-12-00328-CR
V. § TRIAL COURT NO. 21,718
§
THE STATE OF TEXAS, §
Appellee §

PETITION FOR DISCRETIONARY REVIEW FROM
THE ELEVENTH COURT OF APPEALS AT
EASTLAND, TEXAS

CHIEF JUSTICE J. WRIGHT, PRESIDING

PETITION OF PETITIONER (APPELLANT)

COPELAND LAW FIRM
P.O. Box 399
Cedar Park, Texas 78613 Tel. 512-
897-8126
Fax. 512-215-8144
March 2, 2015 email: ecopeland63@yahoo.com

ERIKA COPELAND
State Bar No. 16075250 Attorney
for Appellant
 TABLE OF CONTENTS

Page

Table of Contents i

Index of Authorities/Identity of Trial Court and Parties ii-iv

Statement Regarding Oral Argument 1

Statement of the Case 2

Statement of the Procedural History of the Case 3

Ground for Review 3

The trial court not only allowed the state to describe appellant
as a “sociopath” over objection where there was no testimony,
expert or otherwise, to that effect, it also commented that the
state’s argument was a reasonable inference from the evidence.
Did the Court of Appeals’ decision supporting that ruling
encourage the use of the epithet any time a defendant denies
guilt? (See R.R. 5, pp.135-136, and Shannon v. State, 942
S.W. 2d 591, 597 (Tex. Crim. App.1996).

Summary of the Argument 3

Background 4

Statement of Pertinent Evidence 5

Court of Appeals’ Decision 6

Argument 7

Prayer 13

Certificate of Service and of Compliance with Rule 9 14

i
 INDEX OF AUTHORITIES

Authorities Page

Texas Court of Criminal Appeals’ cases

Berry v. State 9
233 S.W.3d 847 (Tex. Crim. App. 2007)

Borjan v. State 8
787 S.W.2d 53 (Tex. Crim. App. 1990)

Brown v. State 10,11
122 S.W.3d 794 (Tex. Crim. App. 2003)

Brown v. State 8
270 S.W.3d 564 (Tex. Crim. App. 2008)

Freeman v. State 8
340 S.W.3d 717 (Tex. Crim. App. 2011)

Guidry v. State 8
9 S.W.3d 133 (Tex. Crim. App. 1999)

Kepp v. State 8
876 S.W.2d 330 (Tex. Crim. App. 1994)

Mosley v. State 9
983 S.W.2d 249 (Tex. Crim. App. 1998)

Shannon v. State 3,9,10,
942 S.W. 2d 591 (Tex. Crim. App.1996) 12,13

ii
 INDEX OF AUTHORITIES, continued

Authorities Page

Court of Appeals cases

Bachus v. State 11
803 S.W.2d 402 (Tex. App. – Dallas 1991, pet. ref’d)

Cifuentes v. State 8
983 S.W.2d 891 (Tex. App. – Houston
[1st Dist.] 1999, pet. ref’d)

Clark v. State 11
878 S.W.2d 224 (Tex. App. – Dallas 1994, no pet.)

Davis v. State 9
894 S.W.2d 471 (Tex. App. – Fort Worth 1995, no pet.)

Joung Youn Kum v. State 12
331 S.W.3d 156 (Tex. App. – Houston [14th Dist.]
2011, pet. ref’d)

Morrow v. State 9
757 S.W.2d 484 (Tex. App. – Houston [1st Dist.]
1988, pet. ref’d)

Spurlock v. State 6
No. 11-11-00010-CR, 2013 WL 205388 at 6
(Tex. App. – Eastland January 18, 2013, no pet.)

Statutes

TEX. PENAL CODE §22.011 (West 2011) 3

iii
 IDENTITY OF TRIAL COURT AND PARTIES

TO THE HONORABLE COURT OF APPEALS:

NOW COMES Robert Thornburgh, Jr., Appellant, and would show the

Court the trial court and interested parties herein are as follows:

HON. STEPHEN ELLIS, Judge Presiding, 35th Judicial District

Court, Brown County, Texas.

ROBERT THORNBURGH, JR., Appellant, TDCJ Number 01915283,

Bill Clements Unit, 9601 Spur 591, Amarillo, Texas 79107.

RANDY TAYLOR, Trial Attorney for Appellant, 205 Center Avenue,

Brownwood, Texas 76801.

ERIKA COPELAND, Appellate Attorney for Appellant, 930 S. Bell

Blvd., Suite 408, Cedar Park, Texas 78613.

SAM C. MOSS, Brown County Assistant District Attorney, Trial

Attorney for Appellee, the State of Texas, 200 South Broadway, Brownwood,

Texas 76801.

MICHAEL MURRAY, Brown County District Attorney, Appellate

Attorney for Appellee, the State of Texas, 200 South Broadway, Brownwood,

Texas 76801.

-iv-
 STATEMENT REGARDING ORAL ARGUMENT

Appellant believes the clarity of the issue in this case is such that oral

argument would add nothing.

Petition for Discretionary Review
Robert Thornburg, Jr. v. The State of Texas
No. 11-12-00328-CR 1
 PD No.

IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS

ROBERT THORNBURGH, JR. §
Appellant §
§ CAUSE NO. 11-12-00328-CR
V. § TRIAL COURT NO. 21,718
§
THE STATE OF TEXAS, §
Appellee §

PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
AT EASTLAND, TEXAS

CHIEF JUSTICE J. WRIGHT, PRESIDING

PETITION OF PETITIONER (APPELLANT)

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF
TEXAS:

STATEMENT OF THE CASE

A jury convicted Robert Thornburgh, Jr. of two counts of sexual

assault of a child. See TEX. PENAL CODE §22.011 (West 2011).

Thornburgh pleaded true to two enhancement allegations, and the trial court

assessed his punishment for each count at confinement in the Texas

Petition for Discretionary Review
Robert Thornburg, Jr. v. The State of Texas
No. 11-12-00328-CR 2
Department of Criminal Justice’s Institutional Division for life, with the

sentences to be served consecutively. (C.R. 1, pp. 122-123 and R.R. 6, pp.

169-170).

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

The Eleventh Court of Appeals at Eastland, Texas, by Memorandum

Opinion dated February 5, 2015, affirmed Thornburgh’s convictions and

sentences. A copy of that opinion is hereto attached as if fully incorporated

herein at length.

GROUND FOR REVIEW

The trial court not only allowed the state to describe appellant as a

“sociopath” over objection where there was no testimony, expert or

otherwise, to that effect, it also commented that the state’s argument was a

reasonable inference from the evidence. Did the Court of Appeals’ decision

supporting that ruling encourage the use of the epithet any time a defendant

denies guilt? (See R.R. 5, pp.135-136, and Shannon v. State, 942 S.W. 2d

591, 597 (Tex. Crim. App.1996).

SUMMARY OF THE ARGUMENT

In final argument, the trial court overruled the defense objection to the

state’s use of the epithet “sociopath” in describing Thornburgh. It also

commented that the state was entitled to make reasonable inferences from

Petition for Discretionary Review
Robert Thornburg, Jr. v. The State of Texas
No. 11-12-00328-CR 3
the evidence thus suggesting to the jury that the epithet was justified. There

was no testimony, expert or otherwise, that Thornburgh was a sociopath.

The Court of Appeals, in its opinion supporting the trial court’s ruling,

suggests that the epithet may be used anytime a defendant’s character or

veracity is questioned by the prosecution.

BACKGROUND

In 2006, Thornburgh was alleged to have entered into a sexual

relationship with a fourteen-year-old girl. V.A. testified that she had met

Thornburgh after he moved in with his sister – who was the mother of

V.A.’s friend. (R.R. 3, pp. 23-27). After an initial sexual encounter in

Thornburgh’s bedroom, V.A. said that she and Thornburgh thereafter began

a relationship that included sexual intercourse on a regular basis. (R.R. 3,

pp. 43-45). V.A. testified that she moved to Waco in November 2006, when

her parents moved her to live with an aunt. V.A. testified that she returned

to Coleman in 2007, but by then Thornburgh had begun a relationship with

another girlfriend. V.A. said that she met Thornburgh one last time and had

sexual intercourse in May, 2010, when she was nineteen and pregnant with

her first child. (R.R. 3, pp. 50-51). After the birth of that baby, she testified,

Child Protective Services (CPS) became involved with her family, and

during a visit by a caseworker, V.A. said she told CPS about her prior

Petition for Discretionary Review
Robert Thornburg, Jr. v. The State of Texas
No. 11-12-00328-CR 4
relationship with Thornburgh. A criminal investigation ensued that resulted

in the instant convictions. (R.R. 3, pp. 53-56).

Thornburgh denied that he sexually assaulted V.A. or that he acted in

any way inappropriately with her. His specifically denied certain details of

V.A.’s story. He concluded his defense by saying that V.A. and her friends

had fabricated the allegations against him, that “all these people were lying”,

that certain events were taken out of context, and that others had never

occurred. (R.R. 3, pp. 295-297).

STATEMENT OF PERTINENT EVIDENCE

During the State’s argument on guilt-innocence, the prosecutor called

Thornburgh a “sociopath.” Defense counsel objected and requested a

mistrial. (R.R. 5, p. 135). The trial court denied the mistrial whereupon

Thornburgh’s counsel asked that the jury “be told to disregard” the State’s

use of the term. The trial court responded as follows: “Overruled. This is

final argument. You can argue any reasonable inference in the case. There

has been no testimony from anyone about being a sociopath, but this is final

argument. You may argue if you think the evidence tends to indicate your

view of the case. You may proceed.” (R.R. 5, pp. 135-136). The following

exchange occurred as the State resumed its argument:

Petition for Discretionary Review
Robert Thornburg, Jr. v. The State of Texas
No. 11-12-00328-CR 5
 STATE: That’s why I’m arguing that. That’s a

person that can’t tell you the truth. That is a person that

can’t comport - -

DEFENSE COUNSEL: Objection, Your Honor.

STATE: - - what the community expects out of us.

DEFENSE COUNSEL: Now he is testifying to

the jury. There is no evidence in this trial whatsoever

that an expert has given a sociopath definition.

THE COURT: And that is true and the jury is so

instructed, but final argument is not confined to just the

evidence. It’s also reasonable inferences that can be

drawn from the evidence. The attorneys can attempt to

point those out.

You may do so.

– (R.R. 3, p. 136).

COURT OF APPEALS’ DECISION

a. Jury Argument

The Court of Appeals held that the prosecution assertion that

Thornburgh was a “sociopath” constituted a “reasonable inference from the

evidence” and thus “was not improper.” (Slip op. at 6 citing Spurlock v.

Petition for Discretionary Review
Robert Thornburg, Jr. v. The State of Texas
No. 11-12-00328-CR 6
State, No. 11-11-00010-CR, 2013 WL 205388 at 6 (Tex. App. – Eastland

January 18, 2013, no pet.)). The use of the term, the Court of Appeals noted,

“was intended to demonstrate the repeated misstatements by Appellant in

cross-examination and to urge the jurors to make reasonable inferences and

deductions from the evidence.” (Slip op. at 7).

b. Comment on the Weight of the Evidence

Thornburgh also argued before the appellate court that the trial court’s

remarks, when it overruled his objection to the State’s use of the epithet,

constituted an impermissible comment on the weight of the evidence. The

Court of Appeals disagreed. That appellate court held that the trial court’s

comment – that in closing arguments the State may make reasonable

inferences from the evidence – “merely stated a correct rule of law.” (Slip

op. at 8). Thus, the Court of Appeals reasoned, the comment “cannot be

seen as tainting Appellant’s presumption of innocence or vitiating the

impartiality of the jury. . . .” (Slip op. at 8).

ARGUMENT

Permissible Areas for Jury Argument

As this Court well knows, there are four permissible areas for jury

argument: (1) summation of the evidence; (2) reasonable deductions from

the evidence; (3) an answer to the argument of opposing counsel; and (4) a

Petition for Discretionary Review
Robert Thornburg, Jr. v. The State of Texas
No. 11-12-00328-CR 7
plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim.

App. 2008). Cifuentes v. State, 983 S.W.2d 891, 895 (Tex. App. – Houston

[1st Dist.] 1999, pet. ref’d). “The law provides for, and presumes a fair trial,

free from improper argument by the prosecuting attorney.” Cifuentes, 983

S.W.2d at 895. A prosecutor may not use closing argument to present new

evidence before the jury that is outside the record and prejudicial to the

accused. See Freeman v. State, 340 S.W.3d 717 (Tex. Crim. App. 2011).

References to facts that are neither in evidence, nor inferable from the

evidence, are improper. See Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim.

App. 1990). An improper argument constitutes reversible error when, in

light of the record as a whole, it is extreme or manifestly improper, violates

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

proceedings. See, Guidry v. State, 9 S.W.3d 133 (Tex. Crim. App. 1999).

Denial of Mistrial

An appellate court reviews a denial of a mistrial under an abuse-of-

discretion standard. Kepp v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994).

A mistrial is warranted only after the appellate court balances three factors:

(1) the severity of the misconduct (the magnitude of the prejudicial effect of

the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the

efficacy of any cautionary instruction by the judge); and (3) the certainty of

Petition for Discretionary Review
Robert Thornburg, Jr. v. The State of Texas
No. 11-12-00328-CR 8
the conviction absent the misconduct (the strength of the evidence

supporting the conviction. Berry v. State, 233 S.W.3d 847, 858-859 (Tex.

Crim. App. 2007); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.

1998). Notably, an instruction to disregard improper jury argument

generally suffices to cure improper argument error. Morrow v. State, 757

S.W.2d 484, 494 (Tex. App. – Houston [1 st Dist.] 1988, pet. ref’d); Davis v.

State, 894 S.W.2d 471, 474-475 (Tex. App. – Fort Worth 1995, no pet.).

Comments on the Weight of the Evidence

In this case, in deciding whether the trial court abused its discretion in

denying his request for mistrial, Thornburgh asked that the Court of Appeals

not only find that the state’s final argument was impermissible, but that the

trial court’s comments in overruling appellant’s request for mistrial

constituted impermissible comments on the evidence that affected his

presumption of innocence before the jury and violated his right to a fair trial

by an impartial jury.

Analysis

In Shannon v. State, 942 S.W. 2d 591,597 (Tex. Crim. App. 1996), in

the punishment phase of a capital murder trial, the prosecutor argued:

“You know, I had some things I planned on saying, but I

don’t know what else to say. I don’t know how to respond to

Petition for Discretionary Review
Robert Thornburg, Jr. v. The State of Texas
No. 11-12-00328-CR 9
 that argument that was made. That is a killer. That is a rapist.

His past shows you he never expresses any remorse over what

he’s done, and he doesn’t want to change. That is a sociopath.”

The Defendant objected, and the trial court instructed the jury to

disregard the argument. Id. The court denied the defendant’s motion for a

mistrial. Id. The jury returned special issues contrary to the defendant, and

the court sentenced the defendant to death. Id. at 594. The Court of

Criminal Appeals concluded that the comment calling the defendant a

sociopath was improper. Id. at 598.1

Here, the severity of the misconduct (i.e., the magnitude of the

prejudicial effect of the prosecutor’s improper argument) cannot be viewed

in a vacuum. Rather, the impact of the argument by the state must be

assessed with that of the trial court’s improper comment as well that the

state’s argument, however prejudicial, was only an inference from the

evidence.

A trial court must refrain from making any remark calculated to

convey to the jury its opinion of the case. Brown v. State, 122 S.W.3d 794,

1
While the Court of Criminal Appeals ultimately held that the impermissible argument in
Shannon should not result in a mistrial, it did so mainly because there had been a
curative instruction. Shannon at 598.

Petition for Discretionary Review
Robert Thornburg, Jr. v. The State of Texas
No. 11-12-00328-CR 10
798 (Tex. Crim. App. 2003). In Brown, the Court of Criminal Appeals

explained the rationale for this rule, stating:

[J]urors are prone to seize with alacrity upon any conduct

or language of the trial judge which they may interpret as

shedding light upon his view of the weight of the

evidence, or the merits of the issues involved.

-122 S.W.3d at 798.

The trial court improperly comments on the weight of evidence if it

makes a statement that implies approval of the state’s argument, indicates

disbelief in the defense’s position, or diminishes the credibility of the

defense’s approach to the case. Clark v. State, 878 S.W.2d 224, 226 (Tex.

App. – Dallas 1994, no pet.). Jurors tend to take hold of a trial judge’s

remarks, which they often “interpret as shedding light upon his view of the

weight of the evidence, or the merits of the issues involved.” Bachus v.

State, 803 S.W.2d 402, 405 (Tex. App. – Dallas 1991, pet. ref’d). The

Bachus court observed, “it defies logic and common sense to expect a jury

to tell its ‘own judge’ that he is wrong.” Bachus, 803 S.W.2d at 405. The

law commands that a judge presiding over a trial shall govern the trial and

his own conduct in such a manner that his opinion of the merits of the case

or the credibility of the witnesses shall not be made known to the jury.

Petition for Discretionary Review
Robert Thornburg, Jr. v. The State of Texas
No. 11-12-00328-CR 11
 Shannon, in turn it is submitted, stands for the proposition that the

use of “sociopath,” without any witness testimony, expert or otherwise,

strays outside the record and is improper. Here, on the other hand, the

appellate court suggests that that proposition fails where there is any

conflicting testimony by a defendant or where the state questions a

defendant’s veracity. In those circumstances, the Court of Appeals’ opinion

suggests, the door is opened for the use of epithets such as that argued here.

After all, the appellate court noted, the use of the term here “was intended to

demonstrate the repeated misstatements by Appellant in cross-

examination….” (Slip op. at 7). Surely, the Shannon Court intended more.

Finally, while the Court of Appeals noted an instruction to disregard

statements outside the record will generally cure any error, here 1) the trial

court denied the request to disregard, and 2) it injected a statement

suggesting its dismissive opinion of defendant’s testimony, thereby adding

insult to injury. The Court of Appeals’ reasoning that the trial court’s

comments “merely stated a correct rule of law” does not address the harm of

the comments or their potential for prejudice as was done in the case of

Joung Youn Kim, the case the appellate court cites to support its position.

See, Joung Youn Kum v. State, 331 S.W.3d 156, 160 (Tex. App. – Houston

[14th Dist.] 2011, pet. ref’d).

Petition for Discretionary Review
Robert Thornburg, Jr. v. The State of Texas
No. 11-12-00328-CR 12
 In sum, if the state’s use of the epithet in this case was improper

argument, as held in Shannon, it must follow that the trial court’s comments

that the epithet was a reasonable inference from the evidence where there

was no testimony, expert or otherwise, was also error. The Court of Appeals

compounded the trial court’s error in its opinion by suggesting that epithets

such as that used by the state in this case are appropriate anytime the

defendant denies his guilt.

PRAYER

WHEREFORE, Thornburgh prays that this Court reverse the

judgment of the appellate court and remand for reconsideration by the

appellate court of Appellant’s complaints in keeping with its findings herein.

COPELAND LAW FIRM
P.O. Box 399
Cedar Park, TX 78613
Phone/Text: 512.897.8126
Fax: 512.215.8114
Email: ecopeland63@yahoo.com

By: /s/ Erika Copeland
Erika Copeland
State Bar No. 16075250
Attorney for Appellant

Petition for Discretionary Review
Robert Thornburg, Jr. v. The State of Texas
No. 11-12-00328-CR 13
 CERTIFICATE OF SERVICE AND OF
COMPLIANCE WITH RULE 9

This is to certify that on February 26, 2015, a true and correct copy of
the above and foregoing document was served on the State Prosecuting
Attorney, PO Box 12405, Capitol Station, Austin, TX 78711, and on
Michael Murray, District Attorney, Brown County Courthouse, Room, 323,
200 S. Broadway, Brownwood, Texas 76801, in accordance with the Texas
Rules of Appellate Procedure, and that this Petition for Discretionary
Review is in compliance with Rule 9 of the Texas Rules of Appellate
Procedure and that portion which must be included under Rule 9.4(i)(1)
contains 2460 words.

/s/ Erika Copeland
Erika Copeland

Petition for Discretionary Review
Robert Thornburg, Jr. v. The State of Texas
No. 11-12-00328-CR 14
 11TH COURT OF APPEALS ·
EASTLAND, TEXAS
JUDGMENT

* From the 35th District
Robert Thornburgh, Jr.,
Court of Brown County,
Trial Comi No. 21718.

* February 5, 2015
Vs. No. 11-12-00328-CR
* Memorandum Opinion by Bailey, J.
· The State of Texas,
(Panel consists of: Wright, C.J.,
\Villson, J., and Bailey, J.)

This court has inspected the record in this cause and concludes that thereis
no enor in the judgment below. Therefore, in accordance with this court's
opinion, the judgment of the trial comi is in all things affirmed.
Opinion filed February 5, 2015

In The

ELEVENTH COURT OF APPEALS
No. 11-12-00328-CR

ROBERT THORNBURGH, JR., Appellant
v.
THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. 21718

M E M O R A N D U M O P I N I ON
Appellant, Robert Thornburgh, Jr., pleaded not guilty to two counts of
sexual assault of a child. See TEX. PENAL CODE ANN. § 22.011 (West 2011). The
jury found Appellant guilty of both counts. Appellant pleaded true to two
enhancement allegations. The trial.court assessed his punishment for each count at
confinement in the Institutional Division of the Texas Department of Criminal
Justice for life, with the sentences to be served consecutively. Appellant argues
 that Section 22.01 l (a)(2) of the Texas Penal Code is unconstitutional.
Appellant also argues that the trial court erred when it failed to grant a mistrial
based upon prejudicial jury argument made by the State and that the trial court
's response to the jury argument constituted an impermissible comment on the
"'eight of the evidence. We affi1m.
Background Facts
Although Appellant does not dispute the sufficiency of the evidence, we
will briefly summarize the evidence presented at trial. The record shows that, in
2006, Appellant entered into a sexual relationship with V.A., a fourteen-year-
old girl.
V.A. stated that, early in 2006, she went over to Appellant's sister's house to talk
to Appellant. While there, she used the restroom. When she came out of the
bathroom, Appellant asked her into the bedroom. After lying on the bed, Appellant
proceeded to kiss V.A. and initiate sex. V.A. told Appellant to stop and told him
that it hurt, but he continued.
After the first time, Appellant and V.A. continued to have sex every week
in various locations in Brown County, with one occasion out by TYC, a state
school located in Brownwood. V.A. testified that Appellant drove her and K.W.C.,
her friend, to a lake in Abilene where he had sex with V.A. K.W.C. also
testified about the Abilene trip and stated that Appellant and V.A. had sex. V.A.
testified that her relationship with Appellant was interrupted in November 2006
when she moved to Waco after her parents learned of the relationship.
Appellant denied that he dated or had sexual relations with V.A. while she
was underage. Appellant admitted to a sexual encounter with V.A. when she was
nineteen. Appellant described V.A.'s testimony as lies. He also denid the trip to
Abilene with V.A. and K.W.C. Appellant testified that all of the State's witnesses
had lied about ce1iain events. Appellant's defense was that he wa falsely accused
and set up by the State'switnesses.
2
 Analysis
A. Constitutionality of Section 22.011(a)(2)
In his first issue on appeal, Appellant argues that Section 22.0 l l (a)(2) is
unconstitutional in violation of both the federal Due Process Clause and the Texas
constitution's due course of law provision. Appellant contends that the statute is
unconstitutional because it fails to require a culpable mental state that relates to
the conduct alleged and because it fails to allow a mistake-of-fact defense about
the victlm 'sage.
Appellant lodges a "facial" challenge to the constitutionality of
Section 22.0 l l (a)(2). A facial challenge asserts that a statute, by its te1ms, always
operates unconstitutionally. Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex.
Crim. App. 2006). An "as applied" challenge to the constitutionality of a statute
asserts that a statute, although generally constitutional, operates unconstitutionally
as to the claimant because of his particular circumstances. Id. at n.3. Facial and
as-applied challenges to the constitutionality of statutes are forfeited if they are
not raised in the trial comi. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim.
App. 2009) (facial challenge); Cuny v. State, 910 S.W.2d 490, 496 (Tex. Crim.
App. 1995) (as-applied challenge). Appellant did not challenge the
constitutionality of Section 22.0 ll (a)(2) in the t1ial comi. Therefore, Appellant
did not preserve the issue for appellate review. See TEX. R. APP. P. 33.1; Karenev,
281 S.W.3d at 434. Appellant's first issue is overruled.
We note that courts have upheld the constitutionality of Section 22.011(a)
(2) and Section 22.021 of the Penal Code1 when faced with arguments that were
similar to those raised by Appellant in this appeal. Fleming v. State, 376 S.W.3d
854, 85762 (Tex. App.-Fort Worth 2012), aff'd, No. PD-1250-12, 2014 Tex.

1
TEX. PENAL CODE ANN. § 22.021 (West Supp. 2014).

3
Crim. App. Lexis 879 (Tex. Crim. App. June 18, 2014), cert. denied, 2015 WL
231987 (U.S. Jan. 20, 2015) (No. 14--559) (Section 22.021);2 Byrne v. State, 358
S.W.3d 745, 748-51 (Tex. App.San Antonio 2011, no pet.) (Section
22.0 l l (a)(2)(A)). Had Appellant preserved his issue for review, we would
conclude, based on the reasoning of these courts, that Section 22.0 l l (a)(2) is not
unconstitutional.
B. Ju1y Argument
In his second issue, Appellant complains that the prosecutor made an
improper jury argument in his closing arguments when he characterized Appellant
as a "sociopath." The following exchange took place during the complained-of
jmy argument:
[PROSECUTOR]: Remember I made him go through and
name them again just to make sure these were all the times you have
been to Abilene. Well, then what comes out? He lives in Abilene.
He grew up in Abilene. His dad had a mechanic shop in Abilene.
The man was driving back and forth to Abilene at different points.
Why not tell you that? Because he is a sociopath. He is going to tell
youwhatever he needs to tell you --
[DEFENSE COUNSEL]: Objection, Your Honor. To
characterize him as a sociopath without any evidence in this trial, I
would request a mistiial at this time.
THE COURT: Denied.
[DEFENSE COUNSEL]: Well, then I would ask that he be
admonished not to use technical words like that that are -- that are
required by an expert to be decided, which has not been done, and
that the jury be told to disregardit.

2
0n June 18, 2014, the Court of Criminals Appeals affirmed the opinion of the Fort Worth Court
of Appeals in Fleming v. State. The Court of Criminal Appeals issued its mandate in Fle1ning on
October 14, 2014. However, the Court of C1iminal Appeals subsequently withdrew its mandate on
November 3, 2014. Based upon that withdrawal, West Publishing has withdrawn the court's opinion
from both Westlaw and West's bound volume. The opinion of the Court of Criminal Appeals remains on
Lexis as of the date of this opinion.

4
 THE COURT: Overruled. This is final argument. You can
argue any reasonable inference in the case. There has been no
testimony from anyone about being a sociopath, but this is final
argument. You may argue if you think the evidence tends to indicate
your view of the case.
You mayproceed.
[PROSECUTOR]: That's why I'm arguing that. Th.at's a per-
son that can't tell you the truth. That is a person that can't comport --
[DEFENSE COUNSEL]: Objection, Your Honor.
[PROSECUTOR]: -- what the community expects out of us.
[DEFENSE COUNSEL]: Now he is testifying to the jury.
There is no evidence in this trial whatsoever that an expert has given a
sociopathdefinition.
THE COURT: And that is true and the jmy is so instructed, but
final argument is not confined to just the evidence. It's also
reasonable inferences that can be drawn from the evidence. The
attorneys can attempt to point those out.

You may do so.

Proper jmy argument generally falls within four areas: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) answer to argument of
opposing counsel; or (4) plea for law enforcement. Brown v. State, 270 S.W.3d
564, 570 (Tex. Crim. App. 2008); Esquivel v. State, 180 S.W.3d 689, 692 (Tex.
App.-Eastland 2005, no pet.). Counsel is allowed wide latitude to draw
inferences from the record, as long as the inferences are reasonable, fair,
legitimate, and offered in good faith. Shannon v. State, 942 S.W.2d 591, 597 (Tex.
Crim. App. 1996). We review a t1ial court's denial of a motion for new trial for an
abuse of discretion. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App.
2006); Lewis v. State, 911 S.W.2d l, 7 (Tex. Crim. App. 1995).
The prosecutor called · Appellant a · "sociopath" and commented that
Appellant would say whatever necessary to avoid a conviction. The Comi of

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 Criminal Appeals has stated that the use of "sociopath," without any witness
testimony, does stray outside the record. Shannon, 942 S.W.2d at 597. However,
there was conflicting testimony in regard to Appellant's character and whether he
told the tluth. On direct examination, Appellant testified that he had only been to
Abilene five times . since he moved to Brownwood. On cross-examination,
Appellant, however, testified that he used to live in Abilene, that he grew up in
Abilene, that his father had a mechanic shop in Abilene, and that Appellant drove
back and forth to Abilene numerous times. The prosecutor's comment that
Appellant is "a sociopath" and "is going to tell you whatever he needs to tell you,"
thus questioning Appellant's truthfulness, was an appropriate inference from the
evidence. Spurlock v. State, No. 11-11-00010-CR, 2013 WL 205388, at *6 (Tex.
App.Eastland January 18, 2013, no pet.). The trial court did instruct that the
definition of sociopath was outside the record. An instruction to disregard
statements outside the record will generally cure any error. Freeman v. State, 340
S.W.3d 717, 727-28 (Tex. Crim. App. 2011). Therefore, the comment was a
reasonable inference from the evidence, and the argument was not improper.
Even if the prosecutor's comment was improper, we cannot agree that any
harm warrants the remedy of reversal. An improper comment made in closing
argument is considered a nonconstitutional error. Martinez v. State, 17 S.W.3d
677, 692 (Tex. Crim. App. 2000). A nonconstitutional error that does not affect
substantial rights must be disregarded. TEX. R. APP. P. 44.2(b); Martinez, 17
S.W.3d at 692; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). To
determine the harm of an improper jury argument, three factors are balanced:
(1) the severity of the misconduct (the magnitude of the prejudicial effect);
(2) curative measures (the efficacy of any cautionary instruction by the trial court);
and (3) the ce1iainty of the conviction in the absence of misconduct (the strength of .
the evidence that supports the conviction). Martinez, 17 S.W.3d at 692-93.
6
 The prosecutor's comment was not of such great magnitude as to cause
Appellant severe prejudice. The use of the term "sociopath" was intended to
demonstrate the repeated misstatements by Appellant in cross-examination and to
urge the jurors to make reasonable inferences and deductions from the evidence.
Jurors heard contradictory testimony from Appellant and several of the State's
witnesses about trips to · Abilene and were able to decide for themselves the
credibility of the witnesses. Furthermore, there is strong evidence that supports
Appellant's conviction. Accordingly, we hold that the trial court did not abuse its
discretion when it ovenuled Appellant's objection to the State's jury argument and
denied Appellant's request for a mistrial: We ove1rule Appellant's second issue.
C. Comment on the Weight of the Evidence
In his third issue on appeal, Appellant argues that the failure to grant the
mist1ial was an impermissible comment on the weight of the evidence by the trial
court. Appellant contends that the trial court's comments indicated a disbelief in
Appellant's position that he was falsely accused and implied approval that
Appellant was a · sociopath and, thus, incapable of telling the t1uth. While
Appellant made neither a timely objection to the judge's comments nor a request
for a limiting instrnction, we need not address whether Appellant waived this
issue. See Unkart v. State, 400 S.W.3d 94, 99, 102 n.37 (Tex. Crim. App. 2013)
(recognizing that, "[o]rdinarily, a complaint regarding . an improper judicial
comment must be preserved at trial" but declining to address the procedural
consequences of a late objection); Sharp v. State, 707 S.W.2d 611, 619 (Tex. C1im.
App. 1986); Minor v. State, 469 S.W.2d 579, 580 (Tex. Crim. App. 1971).
However, we will neve1theless determine whether the trial court made an
impermissible comment on the weight of the evidence.
When the trial court determines the admissibility of evidence, it shall not
discuss or comment upon the weight of the same or its bearing in the case, but
shall
7
simply decide whether or not it .is admissible. TEX. CODE CRIM. PROC. ANN.
art. 38.05 (West 1979). A trial court must refrain from making any remark
calculated to convey to the jury its opinion of the case. Brown v. State, 122
S.W.3d 794, 798 (Tex. Crim. App. 2003).
A trial comi improperly comments on the weight of the evidence if it makes
a statement that implies approval of the State's argument, indicates disbelief in the
defense's position, or diminishes the credibility of the defense's approach to the
case. See Joung Youn Kim v. State, 331 S.W.3d 156, 160 (Tex. App.-Houston
[14th Dist.] 2011, pet. ref d). If a trial judge makes an improper comment on the
weight of the evidence, we must then decide whether the comment was material.
Id. (citing Simon v. State, 203 S.W.3d 581, 592 (Tex. App.-Houston [14th Dist.]
2006, no pet.)). Only if the comment is material must we determine whether it
rises to the level of reversible error. See id.
The trial comi overruled Appellant's objection to the use of the term
"sociopath" and denied the request for a mistrial. However, the court merely stated
a correct rule of law-that in closing arguments the State may make reasonable
inferences from the evidence. See Brown, 270 S.W.3d at 570. The court did agree
and instructed the jury that no sociopath definition had been entered intoevidence.
Appellant did not request an instruction to disregard the comi's comments on the
use of "sociopath" by the State. The court's comments cannot be seen as tainting
Appellant's presumption of innocence or vitiating the impartiality of the jmy, and
if there were any residual harm, it would have been cured by a timely inshuction
to disregard. See Unkart, 400 S.W.3d at 102; Jasper v. State, 61 S.W.3d 413,
421 (Tex. Crim. App. 2001). We ovenule Appellant's third issue.

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 This Court's Ruling
We affirm the judgment of the trial court.

JOHN M. BAILEY
JUSTICE

February 5, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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