JOSEPH TROY HICKS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed June 12, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00906-CR
............................
JOSEPH TROY HICKS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-80197-06
.............................................................
MEMORANDUM OPINION
Before Justices Moseley, Francis, and Lang
Opinion By Justice Francis
        Joseph Troy Hicks pleaded guilty to two counts of aggravated sexual assault and one count of indecency with a child by contact, all involving his niece. After hearing the evidence, the jury assessed punishment at life in prison and a $10,000 fine for the aggravated sexual assault counts and twenty years in prison and a $10,000 fine for the indecency with a child count. In one issue, appellant complains that the State engaged in improper punishment argument. We affirm.
        In addition to the testimony of the complainant, who recounted several instances of abuse by appellant when she was between the ages of three and ten, the State presented an expert witness, who testified appellant was a high risk for reoffending. Jennifer Edwards, a licensed sex offender treatment provider, testified she had worked with about 1,000 sex offenders in the past eleven years. She explained her treatment program, how she evaluated patients, and the factors she used in making an assessment. Her goal is to provide offenders with tools needed to “lower their risk in the community.”
        She began treating appellant in February 2006 after he had been indicted in these cases. In her first interview of him, appellant said he remembered committing only one offense against the complainant, but he could not remember if there were other instances. Edwards said that was an “extremely big issue” for her because it meant he was either lying or could not recall what he had done, leaving open the possibility of other victims that he did not remember.
        During the evaluation, appellant provided a history that included risky sexual behavior (300 sexual partners, both male and female, of various ages), indications of voyeurism and exhibitionism, pornography, extensive drug and alcohol use, and violent behavior. He also described at least four other children, besides his niece, for whom he had “sexual thoughts, inappropriate activity.” In one case, appellant told Edwards he was at a Lowe's store when he saw a father send his little girl into a public restroom by herself. Appellant said he recognized this “as an opportunity” and “thought about following her into the restroom and watching her to be sure nobody did anything to her,” but he did not. Edwards said she was concerned because the incident was “an escalation of behaviors” that indicated the “scope of sexual behavior and interest even more broadening.” Further, she said she was concerned that appellant was becoming more dangerous or “that more things have happened” than he had admitted.
        Finally, Edwards testified that appellant had manipulated his family into enabling him. She testified that it was “of great concern” that family members, who would be his primary support group, did not know the “actual details” of what had happened and continued to allow him around children.         Appellant attended two evaluation sessions and fourteen group sessions before she terminated him from the group for violating simple rules, one of which was to not be around children. When Edwards asked appellant why he made the choice to be around children, appellant replied, “I've worked through the problem with kids.” She concluded that appellant had determined that he did not “need to follow the rules as he's somehow been fixed.” Edwards testified that she had an “extreme concern” that appellant would reoffend “if it hasn't already occurred.” The safest alternative for the community was for appellant to be in prison where he can be supervised twenty- four hours a day and not have access to children.
        The defense presented Kris White, also a licensed sex offender treatment provider, who testified that he did not believe appellant was a high risk for reoffending. White counseled appellant weekly for eight months in individual and group sessions after Edwards refused to continue seeing him. In the beginning, he said appellant was still in denial, but that changed over the course of treatment. He believed that appellant had not committed a sexual crime against a child since his niece. Additionally, he said appellant had been “clean” and “sober” since seeing him. Based on his evaluation of various factors, he categorized appellant as a “moderately low risk to reoffend.”
        In closing argument, defense counsel argued that appellant had accepted responsibility for his actions by admitting guilt and asked the jurors to consider probation. He argued that appellant had “attempted to make himself better” and that the latest any abuse happened was sixteen years ago, suggesting that appellant was not a threat to the community.
        In rebuttal, the prosecutor argued against probation and for a life sentence, using the facts of the crime and appellant's silence for twenty years. The prosecutor portrayed appellant as a “sexually compulsive and obsessive” pedophile who had also had violent tendencies. She concluded by arguing as follows:
 
So if you fancy yourselves gamblers you give him something less than the maximum. You let him out with probation or five or ten or 15 years. And while you're back there why don't you take a vote and decide who's going to volunteer to tell that next little girl, I'm sorry. We knew what he was . . . We knew what he . . . was at risk to do again . . .. We knew what he was at risk to do again. We knew he was a high risk to reoffend, but we decided to roll the dice with your body and with your peace of mind.
 
        The trial court overruled defense counsel's objection that the argument was “improper.” In his only issue, appellant complains the prosecutor was “intent on intimidating the jury into an excessive sentence by threatening them with speculative future consequences and by threatening to blame them for future harm.”
        Permissible jury argument must fall within one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) response to the defendant's argument; and (4) plea for law enforcement. Rocha v. State, 16 S.W.3d 1, 21 (Tex. Crim. App. 2000). The Texas Court of Criminal Appeals has affirmed arguments similar to the one made here.
        The argument was upheld when the prosecutor stated: “. . . if you don't answer those questions the way this evidence showed you they had to be answered, both of them 'yes,' you're going to participate with Gary Sterling in taking another life." Sterling v. State, 830 S.W.2d 114, 119 (Tex. Crim. App.1992). The court concluded the argument, insofar as it alleged that the defendant would commit another murder in the future, constituted a reasonable deduction from the evidence. Id. at 120-121.
        In another case, the prosecutor argued:
 
 
 
 
You know, I don't want to offend you when I say this; I just ask you to consider it. And it's not an accusation. But with the knowledge you've got now in your hands as jurors from all the way back to 1979 all the way up to 1987--the tracks of violence, the threats, the gunfire, the blood--if you don't do something about this and he kills again, aren't you just a little bit responsible? Think about it. Now you've got your chance to stop it and to do something. You've got the evidence. You've got the law. He's had a fair trial. You know about prior rehabilitation attempts. If you don't stop him and he does it again, you had the chance to stop him. What are you going to do then? You will have had some responsibility, possibly. I'm not going to say blood on your hands. But it will be more difficult to wash them.
 
 
Norris v. State, 902 S.W.2d 428, 444 (Tex. Crim. App. 1995). The court determined the prosecutor's statements were proper pleas for law enforcement.
        In Rocha, the court explained that Sterling and Norris involved “essentially the same type of argument, containing two components: (1) an allegation that the defendant will commit another murder if he is not executed, and (2) the prosecutor's placement of moral responsibility upon the jury for that second murder if a verdict of death is not delivered. Component (1) of the argument is a deduction from the evidence while component (2) is a plea for law enforcement.” Additionally, the court explained that the Norris argument contained another characteristic: “the use of colorful speech to make an emotional impact on the jury.” Id.
        As in Sterling and Norris, the prosecutor here, using colorful speech to make an emotional impact, made a reasonable deduction from the evidence that appellant would offend again if placed on probation and made a legitimate plea for law enforcement. See Rocha, 16 S.W.3d at 21. We overrule the sole issue.
        We affirm the trial court's judgments.
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47        
070906f.u05