Bounmy Thammavongsa v. State of Texas--Appeal from 195th District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Bounmy Thammavongsa

Appellant

Vs. Nos. 11-01-00058-CR & 11-01-00059-CR B Appeals from Dallas County

State of Texas

Appellee

The jury convicted appellant of aggravated sexual assault of a child[1] and sexual assault of a child[2] in a joint trial of separate indictments. In the aggravated sexual assault case, the jury assessed appellant=s punishment at confinement for 30 years and a fine of $5,000. In the sexual assault case, the jury assessed appellant=s punishment at confinement for 20 years and a fine of $5,000. Appellant appeals both cases. We affirm both cases.

Appellant=s stepdaughter testified that, when she was 6 years old, appellant started touching her vagina under her clothes. The victim stated that, when she was 8 years old, appellant put his penis into her vagina and moved up and down. The victim testified that appellant told her that he would kill her if she ever told anyone about the sexual activity. The victim testified that most of the sexual intercourse occurred when the victim was in middle school. She stated that appellant would pick her up at school on Fridays and that he would take her home and have sexual intercourse with her while her mother was at work. The victim testified that appellant raped her more than 100 times from the time she was 8 years old until she was 14 years old. The victim was 18 years old at the time of trial. The sufficiency of the evidence is not challenged.

In a single point of error in each case, appellant contends that the trial court erred in overruling his objection to the prosecutor=s closing argument during punishment because the argument injected prejudicial new and harmful facts into the proceeding.

During the punishment phase of the trial, appellant presented the testimony of John L. Ross, Jr., a Dallas County Probation Officer, who testified regarding the sexual-offender treatment that

would be available if appellant was placed on probation. On direct examination, Ross testified as follows:

Q: As a condition of probation, would the defendant be ordered to attend psychological counseling sessions?

A: Yes, he would be.

On cross-examination, Ross testified as follows:

Q: Is there treatment available for sex offenders in the Department of Corrections, are you aware?

A: I=m not aware of treatment.

Q: Would you be surprised if there were?

A: No, I wouldn=t be.

Q: Because there=s drug treatment available for drug offenses, so there=s probably services for sex offenses as well.

A: That=s correct. (Emphasis added)

There was no specific evidence presented that appellant would receive sexual-offender treatment if appellant went to the penitentiary.

The record reflects the following statement by the prosecutor and the ruling of the trial court during the prosecutor=s closing argument:

[PROSECUTOR]: You heard Mr. Ross explain to you about the programs that are offered through the Probation Department, about sex offender treatment and all those things. He can get those things at TDC, and if he doesn=t want to attend them down there, he B

[DEFENSE COUNSEL]: Your Honor, I object. That wasn=t in evidence.

[PROSECUTOR]: Your Honor, it was in evidence that you can get those things at TDC.

THE COURT: Overruled. The jury will recall the evidence as they heard it. (Emphasis added)

Appellant argues that the prosecutor=s misstatement of the evidence was harmful to appellant in that it tainted the minds of any juror who might have been considering giving appellant a probated sentence so that he could receive sex-offender treatment.

Ross, the probation officer who testified, agreed that there were Aprobably@ services for sex offenders in the Department of Corrections.[3] AProbably@ is defined as Aapparently or presumably true@ in the MERRIAM-WEBSTER DICTIONARY 584 (rev. 5th ed. 1997). A prosecutor is permitted in jury argument to make reasonable deductions from the evidence. McKay v. State, 707 S.W.2d 23, 36 (Tex.Cr.App.1985), cert. den=d, 479 U.S. 871 (1986). It is a reasonable deduction to presume a conclusion if that conclusion is Aapparently or presumably true.@ We hold that the prosecutor=s statement was not improper and that the trial court did not err in overruling appellant=s objection.

If we should be in error and if the prosecutor=s statement was improper, we hold that the error was harmless. TEX.R.APP.P. 44.2(b). The assumed error did not have a substantial and injurious effect or influence in determining the jury=s decision to assess appellant=s punishment at confinement in the penitentiary rather than recommending probation. King v. State, 953 S.W.2d 266 (Tex.Cr.App.1997).

Regarding improper prosecutorial comments, the court in Mosley v. State, 983 S.W.2d 249, 259 (Tex.Cr.App.1998), stated:

Rule 44.2(b) provides that: "Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." The rule is taken directly from Federal Rule of Criminal Procedure 52(a) without substantive change. See Notes and Comments, Tex.R.App. P. 44. Hence, in construing the impact of Rule 44.2(b), federal caselaw would appear to provide especially useful guidance. In applying the federal rule to improper argument cases, federal courts generally look to three factors: (1) 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 conviction absent the misconduct (the strength of the evidence supporting the conviction). United States v. Millar, 79 F.3d 338, 343 (2nd Cir.1996); United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir.1994).

As to the first factor of the harm test discussed in Mosley, the Dallas County Probation Officer testified that, while he was not aware that there was treatment for sex offenders in the Department of Corrections, he would not be surprised if such treatment was available. He agreed that such services were Aprobably@ available in the penitentiary. Johnson v. Johnson, supra, clearly shows that in fact such services are not only available but also mandatory for inmates convicted of a sexual offense. We hold that the prosecutor=s remark, if improper, was only mildly inappropriate and was not an egregious misstatement.

Turning to the second factor, the court did overrule appellant=s objection; however, the court instructed the jury Ato recall the evidence as they heard it.@ The record shows that the probation officer=s testimony was very close in time to the argument and that the jury would have had no trouble in recalling the testimony. As to the third factor in Mosley, the evidence showed that the child had been sexually abused by appellant for many years. At the punishment phase of the trial, the victim urged the jury to put appellant away Aforever@ so that she would no longer have to be afraid for herself, for her little sister, or for other girls. The victim told the jury:

I=m very relieved that it=s finally over. I=m so glad that I don=t have to come back here anymore, but I=m still scared because when he gets out I=m scared. Even though he=s locked up, I=m scared because he has a power over me. I=m going to school because I want to make something of myself because I never had a childhood. I can=t take that back, but all I have is my future. So I would like to have a future that is safe and happy and not sad.

Appellant=s trial counsel made a strong argument for probation. However, based upon the entire record, we do not think that the prosecutor=s brief comment, if it was improper, had a substantial and injurious effect or influence in determining the jury=s verdict. The point of error in each case is overruled.

The judgment of the trial court in each case is affirmed.

December 6, 2001 AUSTIN McCLOUD

Do not publish. See TEX.R.APP.P. 47.3(b). SENIOR JUSTICE

Panel consists of: Arnot, C.J., and

McCall, J., and McCloud, S.J.[4]

[1]Cause No. 11-01-00059-CR.

[2]Cause No. 11-01-00058-CR.

[3]In Johnson v. Johnson, No. 40:00-CV-1889-A, 2001 U.S. App. LEXIS 13097 (N.D. Fort Worth July 2, 2001), the court notes that there is a mandatory sex-offender program for inmates convicted of a sexual offense.

[4]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.