Oscar Bullis Jr. v. The State of Texas Appeal from 142nd District Court of Midland County (opinion)

Annotate this Case

Download PDF

Opinion filed September 30, 2016 In The Eleventh Court of Appeals __________ Nos. 11-14-00240-CR, 11-14-00241-CR, 11-14-00242-CR, and 11-14-00243-CR __________ OSCAR BULLIS JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 142nd District Court Midland County, Texas Trial Court Cause Nos. CR-42,098, CR-42,377, CR-42,378 & CR-42,379 MEMORANDUM OPINION The grand jury returned four separate indictments against Oscar Bullis Jr. Appellant was charged with three counts of indecency with a child by contact with J.J. in trial court cause no. CR-42,098; criminal solicitation of a minor, A.T., in trial court cause no. CR-42,377; indecency with a child by contact with J.J. in trial court cause no. CR-42,378; and indecency with a child by contact and indecency by exposure to the child, K.M., in trial court cause no. CR-42,379. We affirm in part and reverse in part. The State filed a motion to consolidate all four cases for trial. The trial court granted that motion. After a trial, the jury found Appellant guilty of all the offenses as charged in the indictments, and Appellant elected for the trial court to assess his punishment. After Appellant pleaded true to one enhancement paragraph, the trial court assessed his punishment at fifty years’ confinement in each count of trial court cause no. CR-42,098, to be served concurrently; twenty years’ confinement for trial court cause no. CR-42,377; fifty years’ confinement for trial court cause no. CR42,378; and fifty years’ confinement in Count I and twenty years’ confinement in Count II of trial court cause no. CR-42,379, to be served concurrently. The trial court granted the State’s motion to cumulate sentences and ordered the sentences in trial court cause nos. CR-42,377 and CR-42,379 to run concurrently, the sentence in trial court cause no. CR-42,378 to begin after Appellant completed serving the sentences assessed in trial court cause nos. CR-42,377 and CR-42,379, and the sentence in trial court cause no. CR-42,098 to begin after Appellant completed serving the sentence in trial court cause no. CR-42,378. Appellant presents six points of error in each appeal. We will address all of the points of error in a single opinion. Sufficiency of the Evidence In Point of Error No. 1, Appellant challenges the sufficiency of the evidence to support each of the convictions. We review the sufficiency of the evidence, whether denominated as a legal or as a factual sufficiency claim, under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and any reasonable inferences from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable 2 doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). In our review, we will give deference to the duty of the factfinder to resolve credibility issues and weigh the evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Cause Nos. 11-14-00240-CR and 11-14-00242-CR In Cause No. 11-14-00240-CR, the State charged, in three counts, that Appellant, with the intent to arouse and gratify his sexual desire, engaged in sexual contact with J.J., a child younger than fourteen, by touching her breast and her genitals and by causing J.J. to touch Appellant’s genitals. In Cause No. 11-1400242-CR, the State alleged that Appellant engaged in sexual contact when, with the intent to arouse and gratify his sexual desire, he caused J.J. to touch his genitals. Under Section 21.11 of the Texas Penal Code, a person commits indecency with a child by contact if, “with a child younger than 17 years of age,” a person “engages in sexual contact with the child or causes the child to engage in sexual contact.” TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011). The Penal Code defines “sexual contact” as “any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child” or “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” committed with the intent to arouse or gratify the sexual desire of the person. Id. § 21.11(c). An intent to arouse or gratify an accused’s sexual desire can be inferred from conduct, remarks, and all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981). At the time of the offenses, Appellant and Rosie Robles, J.J. and K.M.’s mother, were dating and had lived together for about three years; J.J. and K.M. lived with them. In 2010, the four of them lived in a house in Midland County outside of town. J.J. was twelve years old at the time. J.J. testified that, while they lived there, 3 Appellant would get in bed with her at night and would try to pull her pants down. She would attempt to move away from him, but he would hold her down and tell her not to say anything. J.J. explained that he would touch her “[o]ver the clothing” in her “private area.” J.J. also testified about an incident that happened there one day after school. On that occasion, Appellant came into J.J.’s room as she was about to change clothes. J.J. told him to get out, which he did, but he came back into her room after J.J. had changed into her pajamas. Appellant pulled down her pajama pants and underwear, and then he “turned around and he did something to himself and then he turned back around.” Appellant put his “private area” on her butt and grabbed her hand and made her touch his “private area.” Appellant gave J.J. forty dollars and told her not to say anything about what had happened. He told J.J. to tell her mother the money was for her report card. J.J. also described another incident that occurred at that house when her cousins came to visit. One of J.J.’s younger cousins was asleep in the bed with her, and two other cousins were on the floor. Appellant came into the room, covered J.J.’s mouth with his hand, and tried to pull her pants down. Appellant forced her pants down halfway to her knees, but J.J. squirmed until she was able to pull her pants back up. Appellant then left the room. J.J. testified that her family moved to a house on Kessler Street. J.J. stated that, after they moved to the house on Kessler, Appellant began to come into her room more often than before. He would try to touch her “private area” and her breasts. He would also try to crawl on top of her and touch her in her private area, but she would squirm and move around to try to “kick him off” her. J.J. testified that similar incidents happened on a daily basis while they lived at the home on Kessler. J.J. explained that Appellant touched her private area one time under her clothes and that the rest were on top of her clothes. J.J. further testified that Appellant touched her breast one time on top of her clothes and one time under her 4 clothes. Appellant told J.J. that, if she ever said anything about the incidents, she would never see her sister, mother, or grandparents again. There were times when Appellant drove J.J. and K.M. to school. J.J. testified about one particular incident that happened in the car on the way to school. Appellant dropped K.M. off first at her school and then took the “longest route he could find” to take J.J. to school. J.J. sat in the front passenger seat of the car. As he drove, Appellant “brought his private part out,” grabbed J.J.’s hand, and forced her to touch his private area. J.J. testified that the private area was “hard” and that Appellant was “moving [her] hand.” J.J. stated that Appellant made her touch him “on a daily basis, whenever he would take us to school.” J.J. finally told Appellant that she had math tutorials in the morning so that he would have to drop her off at school first. Appellant argues on appeal that J.J.’s testimony was contradictory and unbelievable. Appellant contends that J.J. testified inconsistently on several key matters. Appellant points to J.J.’s testimony that the incidents happened only three times; her testimony that he only touched her private area and not her breasts; and her admission that, when she was first interviewed by the personnel at the Children’s Advocacy Center in 2011, she claimed nothing had happened. Appellant asserts that the “lack of consistency, believability, and what appears to be recent fabrication” are such that the State failed to prove beyond a reasonable doubt that Appellant committed the offenses charged against him. The State directs us to J.J.’s testimony that Appellant touched her breasts several times over her shirt and one time under her clothing and to J.J.’s details about the incident that occurred in the car on the way to school when Appellant forced her to touch his private area with her hand. Further, the State stresses that J.J. testified that Appellant came to her room nightly and tried to pull down her pants and touch her private area. J.J. also testified that she did not tell anyone what was going on 5 because she was afraid of Appellant. The State argues that, based on J.J.’s testimony, the jury had sufficient evidence to find beyond a reasonable doubt that Appellant committed the offense of indecency with a child by contact in both Cause No. 1114-00240-CR and Cause No. 11-14-00242-CR. We agree with the State. The jury, as the factfinder, can accept or reject any or all of the testimony of each witness. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Further, the testimony of a child victim alone is sufficient to support a conviction for indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2016); Chapman v. State, 349 S.W.3d 241, 245 (Tex. App.—Eastland 2011, pet. ref’d). Accordingly, viewing all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found all of the elements of the offenses in Counts I, II, and III of Cause No. 11-14-00240-CR and the offense in Cause No. 11-14-00242-CR beyond a reasonable doubt. Therefore, the evidence is sufficient to support Appellant’s convictions for those offenses. We overrule Point of Error No. 1 in Cause No. 11-14-00240-CR and Point of Error No. 1 in Cause No. 11-14-00242CR. Cause No. 11-14-00243-CR In Count I of Cause No. 11-14-00243-CR, the grand jury charged that Appellant, with the intent to arouse and gratify his sexual desire, engaged in sexual contact with K.M., a child younger than seventeen, by touching her breast. In Count II of Cause No. 11-14-00243-CR, the grand jury returned an indictment in which it alleged that Appellant, with the intent to arouse and gratify his sexual desire, exposed a part of his genitals to K.M., a child younger than seventeen, and that Appellant knew that K.M. was present at the time. 6 As discussed above, a person commits indecency with a child by contact if, “with a child younger than 17 years of age,” a person “engages in sexual contact with the child or causes the child to engage in sexual contact.” PENAL § 21.11(a)(1). Under Section 21.11 of the Texas Penal Code, a person commits indecency with a child by exposure if, with the intent to arouse or gratify the sexual desire of any person, the person “exposes the person’s anus or any part of the person’s genitals, knowing the child is present.” Id. § 21.11(a)(2)(A). K.M. testified about an incident that happened one morning in March 2011 when Appellant drove J.J. and K.M. to school. Appellant dropped J.J. off at school first that particular morning. While on the way to K.M.’s school, Appellant reached over and tried to grab K.M.’s breast. K.M. slapped his hand away. Appellant responded, “What? You don’t like that?” While K.M. was looking out the passenger window, Appellant “pull[ed] out his private part” and told K.M., “I need you to look at me.” K.M. refused. K.M. testified that Appellant told her, “I can’t do it without you looking at me.” K.M. could see Appellant’s hand moving up and down. K.M. pleaded with him to take her to school, and Appellant responded, “No. I’ll take you when I’m done.” Appellant circled the block at least six times before he finally took her to school. Appellant argues on appeal that K.M.’s testimony was contradictory and inconsistent because she told her mother a different version of events than the one she told at the Children’s Advocacy Center. Appellant stresses that K.M. did not like Appellant and wanted him “out of the picture.” Appellant also emphasizes that K.M. was looking out the window when Appellant exposed himself and could not have seen whether Appellant actually exposed himself. Appellant asserts that such lack of consistency and believability, and apparent suggestion, “cannot begin to approach proofs beyond a reasonable doubt” and, therefore, that there was insufficient evidence to convict Appellant. 7 However, as discussed previously, the jury, as the factfinder, can accept or reject any or all of the testimony of each witness. Penagraph, 623 S.W.2d at 343. The factfinder is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Wise, 364 S.W.3d at 903. Furthermore, “[t]he child need only be ‘present’ for the offense to be effectuated; the child does not even have to be aware of the exposure.” Harris v. State, 359 S.W.3d 625, 631 (Tex. Crim. App. 2011). The offense is based on Appellant’s actions and mental state, not the child’s comprehension. Id. Therefore, viewing all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found all of the elements of the offenses in Counts I and II of Cause No. 11-14-00243-CR beyond a reasonable doubt. Thus, the evidence was sufficient to support Appellant’s convictions for those offenses. We overrule Point of Error No. 1 in Cause No. 1114-00243-CR. Cause No. 11-14-00241-CR In Cause No. 11-14-00241-CR, the indictment contained an allegation that Appellant, with the intent that sexual assault of a child be committed, did request, command, and attempt to induce A.T. to engage in sexual intercourse with Appellant. Appellant argues that the evidence was insufficient to convict Appellant of criminal solicitation of a minor because “no testimony attributes any words of solicitation, inducement, or other to [Appellant].” In 2011, A.T. was thirteen years old and played on a basketball team that Appellant helped coach. On occasion, Appellant gave A.T. a ride to and from practice. Sometime in the winter of 2011, Appellant picked A.T. up at her house for basketball practice; the practice had actually been canceled. J.J. and K.M. were with Appellant when he picked A.T. up for practice. When they arrived at practice, no one was there, and they left. After they left, Appellant first dropped J.J. and K.M off at home. A.T. was in the backseat of the car, but after Appellant dropped J.J. 8 and K.M. off, he told her to move to the front seat. As they drove past H-E-B, after about three minutes of silence, Appellant asked A.T., “Do you want to see a picture of a guy’s penis?” Appellant put his phone with the picture of the penis in A.T.’s face so that she would see the picture. Appellant started laughing and then asked A.T. if she wanted to see a real penis. Appellant pulled into the parking lot of the apartment complex where A.T. lived and told A.T., “It won’t hurt. It would be fun.” A.T. told Appellant that she would walk the rest of the way home, and he responded by locking the car doors. A.T. unlocked and opened the car door and ran the rest of the way home. Under Section 15.031 of the Texas Penal Code, a person commits the offense of criminal solicitation of a minor if, with the intent that sexual assault of a child be committed, “the person requests, commands, or attempts to induce a minor to engage in specific conduct that, under the circumstances surrounding the actor’s conduct as the actor believes them to be, would constitute” sexual assault of a child. PENAL § 15.031(a) (West Supp. 2016). “A person may not be convicted under this section on the uncorroborated testimony of the minor allegedly solicited unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the minor act on the solicitation.” Id. § 15.031(c). Section 22.011 provides that a sexual assault of a child occurs if a person, intentionally or knowingly, “causes the penetration of the anus or sexual organ of a child by any means.” Id. § 22.011(a)(2)(A). The State asserts that it is a reasonable inference that Appellant attempted to induce A.T. to engage in sexual intercourse with him when he requested she look at his penis and told her “[i]t won’t hurt.” See Hernandez v. State, 327 S.W.3d 200, 207 (Tex. App.—San Antonio 2010, pet. ref’d) (acknowledging that the jury is permitted to rely upon reasonable inferences in determining whether the other facts and suspicious circumstances tend to connect the accused with the offense). 9 However, Appellant argues that “no testimony attributes any words of solicitation, inducement, or other to [Appellant].” Appellant contends that the evidence that Appellant asked A.T. if she wanted to see a real penis and stated that “[i]t won’t hurt” is not enough to prove beyond a reasonable doubt that Appellant solicited A.T. to engage in sexual intercourse. We agree with Appellant. Other than the broad, vague statements made by Appellant that “[i]t won’t hurt. It would be fun,” there is no evidence that would suggest that Appellant had the intent to solicit A.T. to have sexual intercourse with him. He never mentioned sexual intercourse to A.T., and he never touched her while they were in the vehicle. Therefore, considering all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could not have found all of the elements of the offense charged in Cause No. 11-14-00241-CR beyond a reasonable doubt. Therefore, the evidence is insufficient to support Appellant’s conviction for that offense. Appellant’s Point of Error No. 1 in Cause No. 11-1400241-CR is sustained. Because we have found that the evidence is insufficient to convict Appellant for the offense charged, we need not address Point of Error Nos. 2, 3, 4, 5, and 6 as they relate to Cause No. 11-14-00241-CR. Due Process Violation Cause Nos. 11-14-00240-CR, 11-14-00242-CR, and 11-14-00243-CR In Point of Error No. 3, Appellant argues that, because the evidence is insufficient, Appellant was denied due process of law. The Due Process Clause of the Fourteenth Amendment guarantees that no person may be convicted of a criminal offense and denied his liberty unless his criminal responsibility for the offense is proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970); Alvarado v. State, 912 S.W.2d 199, 206–07 (Tex. Crim. App. 1995); see U.S. CONST. amend. XIV. We held in Point of Error No. 1 that the evidence was both legally and factually sufficient to support Appellant’s convictions in Cause Nos. 11-1410 00240-CR, 11-14-00242-CR, and 11-14-00243-CR. Therefore, Appellant was not denied due process of law. Point of Error No. 3 in Cause Nos. 11-14-00240-CR, 1114-00242-CR, and 11-14-00243-CR is overruled. Exclusion of Evidence Cause Nos. 11-14-00240-CR, 11-14-00242-CR, and 11-14-00243-CR In his second point of error, Appellant argues that the trial court erred when it allowed the investigating detective to testify that Appellant’s actions toward J.J. amounted to “grooming” even though the detective was not shown to be an expert on the subject of “grooming.” Appellant also argues that the trial court erred when it allowed the detective to testify about an incident where “full sexual penetration” occurred and when it denied Appellant’s request for a mistrial after such testimony was admitted. The State contends that Appellant did not object to the detective’s testimony concerning “grooming” on the ground that the detective was not an expert on the subject matter and that, because Appellant’s objection on appeal does not comport with his objection at trial, he has waived the error. The State also responds that the trial court did not abuse its discretion when it overruled Appellant’s objection regarding the use of the phrase “full-on penetration” because it was not an extraneous offense and because the probative value outweighed any unfair prejudice. Charles Sims, a former detective with the Midland Police Department, testified that he investigated J.J.’s allegations against Appellant. When he began to explain the allegations that J.J. had made, he said that it “started out” as “a grooming phase.” Defense counsel made the following objection: “That calls for speculation, calling whatever is going on here ‘grooming.’ We haven’t established any predicate for that.” The trial court asked the prosecutor to rephrase, and the prosecutor began to lie a foundation regarding Sims’s experience in investigating sexual offenses. Sims detailed his training and experience and testified that he had observed what is called a “grooming process” in his investigations of such cases. Sims explained 11 what the grooming process often entailed and gave examples of how the process might escalate from inappropriate tickling to “full-on touching and then into penetration.” Sims also testified that it was his opinion that a grooming process occurred in this case. Defense counsel did not object to any of this testimony by Sims. The prosecutor then asked Sims about the specific grooming process in this case. Sims said that one of the first incidents was one in which Appellant “got up behind [J.J.] and was . . . ‘kind of hard,’ referring to [Appellant’s] penis up against her buttock area” and then, on another occasion, he tried to take off her panties. Eventually, “she reported a full-on penetration incident.” Defense counsel objected and asked if they could approach the bench. Counsel explained that Appellant had filed a motion regarding extraneous offenses and that Sims should not have gone into “a full sexual assault” when the case was about fondling, touching, and indecent exposure, not penetration. He also asked for a mistrial. The prosecutor represented that Sims was talking about the same incidents at issue in the trial and stated that Appellant was charged with indecency “for a number of reasons.” The trial court overruled the objection and denied the motion for mistrial. Sims continued to explain the different incidents of indecency that were reported by J.J. The prosecutor then asked Sims, “[W]hat other offenses were you able to determine?” Sims replied, “[A]ggravated sexual assault of a child.” Defense counsel again objected, and the trial court again overruled the objection and denied the request for a mistrial. Based on our review of the record and our understanding of the allegations made by J.J. during her forensic interview, it appears that Sims’s testimony concerning an alleged penetration referred to J.J.’s allegations of digital penetration. The State chose to charge Appellant with indecency by contact instead of aggravated sexual assault of a child; however, the incident that Sims discussed was the same 12 incident for which Appellant was on trial. Because the incident was the same, it was not an extraneous offense; it was one of the charged offenses. Therefore, the trial court did not err when it overruled Appellant’s objection to the alleged extraneous material, nor did the trial court err when it denied Appellant’s request for a mistrial. As to Appellant’s complaint that Sims was not shown to be an expert on the topic of “grooming,” we agree with the State that Appellant failed to preserve the issue for our review. After defense counsel’s initial objection, the prosecutor rephrased, and Sims began to discuss what the grooming process is in general and what the grooming process was in this case. Defense counsel never raised any further objections to Sims’s continued testimony in which Sims explained the grooming process. Therefore, Appellant has waived this complaint. See TEX. R. APP. P. 33.1. Appellant’s second point of error in Cause Nos. 11-14-00240-CR, 1114-00242-CR, and 11-14-00243-CR is overruled. Motion for Mistrial Cause Nos. 11-14-00240-CR, 11-14-00242-CR, and 11-14-00243-CR Appellant argues in Points of Error Nos. 4 and 6 that it was an abuse of discretion for the trial court to deny Appellant’s request for a mistrial during closing argument. In Point of Error No. 4, Appellant specifically contends that the prosecutor improperly struck at Appellant over the shoulders of his attorney. Appellant argues in Point of Error No. 6 that Appellant was harmed by the prosecutor’s improper closing remarks. We review a trial court’s denial of a motion for mistrial under an abuse of discretion standard. Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004). Only highly prejudicial and incurable errors will necessitate a mistrial. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). Prejudice is incurable only when “the reference was clearly calculated to inflame the minds of the jury or was of such damning character as to suggest it would be impossible to 13 remove the harmful impression from the jurors’ minds.” Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). The State contends that Appellant did not preserve error for our review in Point of Error No. 4. The following occurred during the prosecutor’s closing argument in the guilt/innocence phase: [PROSECUTOR]: Again, ladies and gentlemen, what it comes down to is the Defendant committed these acts. He sought out girls close to him only to satisfy his own perverse desires. There’s no other explanation -THE COURT: Two minutes, Counsel. [PROSECUTOR]: --other than it happened. Ladies and gentlemen, I ask -[DEFENSE COUNSEL]: Your Honor, objection. [PROSECUTOR]: --you to find the Defendant guilty. [DEFENSE COUNSEL]: Objection, Your Honor; the State cannot invade the province of the jury. [PROSECUTOR]: That’s not even a legal argument anymore. .... [DEFENSE COUNSEL]: And cannot go outside the parameters of acceptable closing argument. And vouching for the strength of their own case is outside those four parameters, Your Honor. We’ve cited the case to the Court. We’d ask for a mistrial. THE COURT: The court will deny the request for mistrial and overrule the objection. After the prosecutor had concluded his closing argument, and after the trial court had sent the jury out of the courtroom to begin deliberations, defense counsel stated, “My final objection is . . . we object to State’s counsel striking at the 14 Defendant over the shoulders of his lawyer.” Defense counsel claimed that the comment, “That’s not a legal argument,” was “denigrating and insulting” and outside the four parameters of acceptable closing argument. We agree with the State that Appellant did not timely object to the prosecutor’s comment. Defense counsel waited until the prosecutor had finished his closing argument and the jury had left the courtroom before he made that objection. In order to preserve jury argument error, the complaining party must make a contemporaneous objection and receive an adverse ruling. Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992); see TEX. R. APP. P. 33.1(a). Because a contemporaneous objection was not made, Appellant has not preserved error for our review in regard to his “striking over the shoulder” argument. See Blue v. State, No. 11-14-00189-CR, 2016 WL 3573496, at *5 (Tex. App.—Eastland June 30, 2016, no. pet. h.) (mem. op., not designated for publication) (holding that error was not preserved because defense counsel did not timely object to the prosecutor’s closing argument). Therefore, Point of Error No. 4 in Cause Nos. 11-14-00240-CR, 11-14-00242-CR, and 11-14-00243-CR is overruled. Appellant argues in Point of Error No. 6 that the State’s closing remarks were improper. Appellant specifically points to the prosecutor’s comment that Appellant’s behavior was “classic controlling behavior.” Appellant asserts that this statement was “clearly outside acceptable argument, as there was no expert testimony regarding same, no lay testimony concerning same, and absolutely NOTHING in the evidence establishing this as fact.” Appellant argues that the prosecutor was simply testifying. Proper jury 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.— 15 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). 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: (l) 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 certainty 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. At trial, testimony was presented that contained the details about Appellant’s control over K.M. and J.J., including Appellant’s decision to not let K.M. and J.J. be around their grandparents, cousins, and aunts and his refusal to let them talk to their friends on the phone. Evidence was also presented that Appellant threatened J.J. when he told her that that she would not see her family again, if she told anyone about his actions. Further, Appellant argued at trial that J.J., K.M., and A.T. were not credible witnesses and specifically pointed to J.J.’s decision to delay her “outcry.” “Classic controlling behavior” is a reasonable deduction from this evidence and refutes Appellant’s claim that the witnesses were not credible. Therefore, the argument was not improper. Appellant further points to the prosecutor’s statement that there was “nothing to refute what happened, there’s nothing to -- there’s nothing to come close to meaning that the Defendant did not commit these acts unless . . . you believe the 16 victim is lying.”1 Appellant contends that the statement was a comment on Appellant’s failure to testify and is beyond the limits of proper summation. We consider the prosecutor’s language from the jury’s standpoint, and it must be clear that the comment was a reference to the defendant’s failure to testify. Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). We must consider the context in which the comment was made and determine “whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify.” Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007) (quoting Bustamante, 48 S.W.3d at 765). We conclude that the prosecutor’s statement was not a comment on Appellant’s failure to testify at trial. As such, the prosecutor’s statement was not an improper argument. Appellant also argues that the prosecutor’s statement that the alleged victims were unable to lock their doors was a complete fabrication and misstatement of evidence because testimony established otherwise. However, the trial court instructed: “The jury will remember the testimony of the witnesses.” Further, in the trial court’s charge, the jury was charged “that it is only from the witnesses and exhibits admitted by the Court that the jury is permitted to receive evidence regarding the case or any witnesses therein.” “Instructions to the jury are generally considered sufficient to cure improprieties that occur during the trial.” Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). We presume that a jury will follow the judge’s instructions. Id. Even if the trial court erred, there is nothing to suggest that the jury did not follow the instructions of the trial court, and there is no reversible error. See Martinez, 17 S.W.3d at 692. 1 In his brief, Appellant mistakenly quoted from the record when he said in his brief to this court that the prosecutor said there was “nothing to refute the girls’ testimony.” 17 Appellant also asserts that the trial court should have granted Appellant a mistrial because the prosecutor may not invade the jury’s province. Appellant contends that the prosecutor invaded the jury’s province when, in closing argument, the prosecutor “vouched for the credibility of its own witness and case claiming ‘J.J.’ had remembered ‘vivid’ details that a child could not make up” and when the prosecutor stated that “there was no ‘justification’ and no reason to ‘fabricate’” and “there’s no other explanation other than it happened.” Appellant argues that the prosecutor strayed beyond the acceptable limits of summation and caused the jury to hear something that “no objection or court ruling can cause them to forget, ‘unhear,’ disregard, or pretend they did not hear.” The trial court sustained Appellant’s objection that there was not any expert evidence of this assertion and instructed the jury, “The jury will remember the testimony.” As discussed above, we presume that a jury will follow the judge’s instructions. Gamboa, 296 S.W.3d at 580. Further, there is no evidence that the jury did not follow these instructions. Even if the trial court erred, there is nothing in the record to suggest that the jury did not follow the instructions of the trial court, and there is no reversible error. See Martinez, 17 S.W.3d at 692. Appellant also points out the prosecutor’s statement that “this is something that will stay with them forever.” The State contends that this comment is a plea for law enforcement in sexual abuse offenses against children and a “summation of the evidence in consideration that J.J. was described as having attempted suicide,” which led to her outcry to her mother about the abuse. We agree with the State. Further, even if it is an improper statement, the severity and prejudicial effect of the statement is extremely low, and we cannot agree that reversal is warranted. Appellant’s Point of Error No. 6 in Cause Nos. 11-14-00240-CR, 11-14-00242-CR, and 11-14-00243CR is overruled. 18 “Stacked” Sentences Cause Nos. 11-14-00240-CR, 11-14-00242-CR, and 11-14-00243-CR In Point of Error No. 5, Appellant argues that the trial court should not have “stacked” his sentences. However, the State argues that Appellant has not preserved error for our review. We agree. To preserver error for our review, the record must show that a complaint was made to the trial court by a “timely request, objection, or motion.” TEX. R. APP. P. 33.1(a). The complaint must have “stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Id. Appellant did not object to the trial court’s decision to “stack” the sentences. Further, Appellant did not complain to the trial court in his motion for new trial that the jury should have been permitted to determine whether the sentences should be served consecutively or concurrently. See Bonilla v. State, 452 S.W.3d 811, 818 (Tex. Crim. App. 2014). Therefore, Appellant has not preserved error for our review. Appellant’s Point of Error No. 5 in Cause Nos. 11-14-00240-CR, 11-14-00242-CR, and 11-14-00243-CR is overruled. This Court’s Ruling Accordingly, we affirm the judgment of the trial court in Cause Nos. 11-1400240-CR, 11-14-00242-CR, and 11-14-00243-CR. We reverse the judgment of the trial court in Cause No. 11-14-00241-CR and render a judgment of acquittal.2 September 30, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J. 2 JIM R. WRIGHT CHIEF JUSTICE Because we are not aware of a lesser included offense that would apply to the facts of this case, this is not a case in which we must reform the judgment to show a conviction for a lesser included offense. See Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014). 19

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.